Ban~;e:;ne Ei yela7 Mpondo

Cili 1 Paul

vs < Te:fu 7 I·Ie.leGela vs . Bi~~-el <.-: 7 Lan[::a

~- , l.Ci..J.lUZa

Dhl2111ini J I' ~velapaifu. VG. Nz inv~1.c~.e 7 Gede Dube 7 l\'~ ... 11j ola vs . I 1bo za

Koza~ h.lfred

Lethoba7 So::Jo

r...Jabasa I.iaj oz i 7 J 2.cob Malulelca 7 .t~pril Monyati 7 N·:;azana Mo..seko an d Mab e r.1z: .. tonzi 7 0au1uel Ma' 'elc. ~ Thomas 1:Iboza I'.J1lon~·o 7 IVi:a.gcekeni l.~hlon::; o 7 Mding i i'.~iya 7 I:.:ayi vuke r~ij 2 .. du 7 Bal1''!2..Tla nitett .. ra7 Shettine. r!uu.e

Ha_p oza r~.~. cob o 1 L:aphala N:. cobo 1 £1qancleni r.:._cobo7 3koteni Hl<:ala7 Alina rf.t:os i" Lshayeti Htuli 7 ::Jani Nxele 7 Jo..zi Nzi:t:.la.nC:.e 1 Gede Nzuza.7 Mo.S;i:Jababa

Sl10l1[;vre 7 E"phraim Shon~'l..i e 7 Frc~ns 3ibiya Simelane 1 Hahon:~:~ane ;::,U[:;azie

Tefu 7 ll'lalesela

Xulu, l:ltshabuli

Zulu 7 :.:anxiba Zulu 7 'l~lomC~. s

vs " Zulu 7 Thomas

vs . i1 ~-~;::; e l:o 3 .. l1d lVIabe

VS a vs . vs. vs. vs. vs . vs. vs. v s. vs 0

vs. vs. vs . vs 0

vs. vs 0

vs. v s. V G• vs vs 0

vs. VSc VSo

VSo vs. v s . VS· vs.

N~cobo IJu cle ~~v~la 7 Thom2.s ::Jlbly3. Letl1oba N.:.po za and another Faluleka 1 April Du b e 7 ~ .o.nj ola Nzuz2. 7 1.1:3_,-_)"'. n::.baba Xulu 1-:-kr::.l a 7 Al ina ~'"tul i ~ Dani 0:1on ",-.'' e 1-Taj ozi

Tia.tonzi 7 Sw11uel r:abasa. N·~ CO 1) 0 n l J..andu 1f~- cob o; :Jinili(}'Ie l' li ,:-a N"LarJan.e 7 f~leintj e £\\] adu 1 Bab:wana N:(ele 7 Dw:·taza DhlaD1ini :; :J.1]_on,so

I.Itetvra.i S~1 ettina Shong"~,J e ~ Gra.sman r iai'l~'2. ti 7 I{~azana Su~:azie? Petrus SiLlelone

VS n 3 aJ.1_:_)3J18

vs~ LiJ.1lon~~ o

vs o Zulu, Zimbube vs. Koza., Al fr ed

Pa.]e

25 1

32

18 8

29

10

40 16 27 11 lC'

5 27

8 13 35

4 27 43 16

5 40 36

2 4

20 38 31 18 13

43 22 11 45 45

25

35

19 29

...

Appeal)

Bill of n Co 8 ~::: I Ca.use o:c , ~c "Cl on) Chief's Court , Co C.e ) Na.tal 1

Costs, Custom,

Custor.1&.J."'Y Union Dali'JG<~ e s ? :Jefamation, Def2E1ation 1 Divorced '.Vom::ln 1

Es t a te

:Jvidence

:Sxc eptions

Fe es

Husoancl and Hife

Interplee.der 7 I::J.1eritance Incestuous Union

JuC:..:_ment

Kr:.alhead

Lobolo

nr.:afisha" Ik:' . .rried "~Nomal'1

lia.tal Ea.ti ve Co de Fative Coumissioners 1 Nc:ttive Custor11

f r0111 c:1ief' I 8 Extens ion of see T2.xa ti on s ee PI"'actice Apyeo..l from Section 35

11 130

Court time to note

o..nd Pr ocedure

and Sl 11 140

i l

11

11

8G 11 83 72

142 (18Sl)

Husb?~ l-i-a&i.J...i t y 1 1 rl:t e I S :t..Q.r..,tS

11Endi sa 11 or 11 ubulunz.;un il>iafisha" i Ba.pedi Tribe 11u1ctU1,r·ena n 2 heir' s ri~_}::.ts

_. ,.-e '* . JJ. a -.

See Defarn8.tion Dama.=,es I· :e ;_sure of c1am::;.~~e s See Husb2.11d and vri f e

Native dyin:~ in emplo;;rnent GovernElent n otice 1654 of 1£-2S

. ~~urcl.en of Proof in inter-­-o1ead.er

~ · ee ?r2cti c e and Froceclure

Divorced '"Oinon; issue of Gue.T'cl.i '--u.1ship of vrife l-Iubb c=-J ld ' s 1iabi1ity for

wife's torts -TJ if e c2J1not sue oi"' be sued.

in own n2r11e

See .6vidence Ri~;l1ts of ukun,<2,·ena heir Property ri~hts in issue of I

, a~ainst · rife 1 11 du1y as s iste0.

: by husba.ndii e.Lfect of . · ~1-~ainst guardian 1Nhei1 not co· ·

c.efenG.ant

Liability of, Visitors EarninGS of ~nate

~:>ay.tile nt to exempted Native Agreement selJar o.te tc) Liarrias e contr9.ct )

See cus tom .Se e ~=usb:·,nd and .life

3ee Cod.e Po~ .. lers of, Go 1~ " 1 664 of 1S29 13ee Custom

2 19)31

2)19 1 4

40 36 20 2jlC 7 11

13 fll'> / 20 --25 36

2 75?1C )ll?40

13 43

5

27?32

10

2S 4

13

8

36 3[

13 I'~-

4C

(") L•

1

16

18

5

...-- c:. -

I ·r _:_ctice L•11cl Proc edure N-:::.t i ve Cor;un i s sioner s 1 Courts La.te noting of ap.._) eal ? hoH

cur ed

Set-off

.Jl .::.nder

Tc.X-:'.tion

I r:r· e.3Ul o.ri ties no e:;round for review

Ex..£!-~l~,_t.~.PQS~,,to ... ,s ~~s a i s couraged

Appe·a l t:; 'f fo1if Chiefs 1 Courts Causa o:t.' a ction

Tc..·cecl c os t s acains t liquid ju~ ~r11ent

See De j:.::unation

Bill of c os t s in Appeal Court - Review of -G.F~ 2254/1928

Co~1abi to.ti on with male p erson - p resumption of marri ar;e

Page 22

31~ 35 ~ ~"3/ I

/ t' -7-22 ~ 19 22

11

10

45

Digitized by the Internet Archive in 2016

https://archive.org/details/nativeappealcour00tran_14

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DUH.BAN~ 18th J811uary, 1935. Before F.H. Brounlee, President? C"A. I"Iack 7 G.P .. 1.!allacei Me~·11bers Native Appe&.l Court (Transvaal and Natal Division) .

E2.rnin~~-~3 of krc.al inmate - Liability of Kr2.alhea.d ~ Sections 35 o.n ci. Sl, ND.tal Hati ve Code .

An appeal f~:>om the Court of Native Com.nissioner 1

IF A KJ~'\ALH:~AD COj.'l'.•=tiBUT:C.S TC KliAAL I£:11 'ATE LOBOLO \/~-IICI= REP~-t.~SEJ:T~.:J f.'.. SU.JS'.Ci\.FTIAL POF.TI OH OF TH£: LArET:J;R 1 3 EARNIHG3~ THE IEH'iT1~ E.-~0 HO !\.CTIO:K -~GAINST Hl M FO.J Tl-IE RETtJRN OF PORTI1)N 011' HIS ~ARHINGS.

In this c s.se T.:ponclc Biyela (Appellant) appealed to the Native Commissioner's Court aga.inst a decision of Acting Clli 2f Ntshu·:nayelo Zult- pr·ono,_lnced on the 27th Febx·uary, 1S34, in fa.vour of Langa 3i~.~e la. (:]esJ.JonC:.ent ) f or eight head of cattle anc1 costs in an action in 1orl1j_ch ~iespondent claJ.med six head of c att1e \Ih i ch he alleged repreE.entec1 earnings contributed tov.rards the maintenance of the A.ppell<?.nt is l:ra.al anct t.wo head of l\·Iqoliso cattle v.~1 ich he alleged -~o be h is property and which Appellant had used for his ov1n J:.>Urpos e s o

The .:\cting Native Co rnmissioner who heard the appeal amend.ed the Chief's judgment b;:,; reducing the nwr1ber of cattle av,rarcled to six head or their value £30 and costs 9 and it is against this G.ecision that ar... appeal has now been brought before this Court.

The main portion of t~1e action is f ounc1e6. Ul)Oil a reco.;;nised native custom as laid dmvn j_n Section Sl of the Natal Native Code 1 'dhich provides that vrhe::ce a (junior member of B. kraal h as consistently contributed towa..rds the maintenance of the kraal u11der an agreement -Virhereby the kraal~-head would provid.e lobolo - or a p ortion thereof - for a vvife? the refusal or failure oi' the k.3.. ... aa.l-he ad to implement such at;reeE1ent Vlill entitle the junior mer11ber tc l'ec over a rea.sonable p ortion of the earnin3s so contributed by him.

It i s coElli1on c &.use that the P..espondent contributed £30 to','le.rds the maintenarJce of the kraal 9 that i·J1e Appellant is t1.1e kraal-llead, thu. t he undertook to allocate t he dowry to be l"E:ceived in respect, of his s ister ? Kotshi, towarcls the dowrY to be p2.iG. for Respondent; s \.rife and that £16 and. eight go2.ts were contributed to··Iards such l3.tter dowry by the ~\ppellant"

The Respondent maintains that the Ap})ellant has not

fulfilledo .. " o o .

- 2 -

fulfilled his undertaking· in that he has only contributed a portion of KotshJ. ' s doury t ovrards the lobolo payable in reSl:)ect of his wj_fe . But under the terms of Section 91 of the Natal Native Coc.e? the Respondent 1 s only action in these circumntances is for the re t urn of a reasonable Dortion of those contributions vrhich he h ad n1ade to1:.rards the rnaintenanc e of the kra.al, a.J.l.d as £16 a.J.l.d ei[';ht [:oa ts - the equivalent of £20 01 .. ti·.·o·~thirds of the total <Jmount - have been returned? thi ~,; Court c onsiG.ers that the AppellruJ.t has sufficiently fnll'illect the le:=;al oblicatiol1 imposed upon him by t h e terms of the :3ectio:n quoted= In s o far as the subsic;,iary claim for the t\·vo ll3ad of Mclo1iso cattle is concerned 7 this Court is in a2,reement with the decj_sion g i ven by the Actin~ Native Comr.nis ~ s :loner in re~ arc:_ thereto c

The appeal nill ac cordingly be allowed with costs a nd the c.iudgment of the Actin:s· Native Conm1issioner amended to one for the Appellant ~vitll costs .

. G!i?.~. _1{0_ ~-· _g 0

§.lSO~&Jii_. NG_CQg_Q __ yp~'-_ _P.lH .. J;.pTG~LEl- NQ:99~Q .

DUR3AH. 21st January? 1935" Before F . H. Brownlee? President 7 C.A. . f'~ack 1 G.P. ~Ja1lac e J :viem':Jers Native Appeal Court (Transvaal and l'T2.t8.J_ Division) .

A'!p eal fr om Chief 1 s Co~rt - Costso

An appeal fro ::n the Court of a Native Commissioner.

A DEFEYD_UJT I !lr A CH.I:8F 1 S COunT? TENDERED OHE BEAST. HE -J,\S ORDERED TC PAY.- TETI~E HEAD, OH .APPEAL TO NATIVE COI\.JviiSSIOllER 1 ~ COURT 7 TIE JUDGLENT -i,JAS REDUCE;D TO ONE BEAST c

HELD7 T?illT DZFEIIDANT ''J.A.S :2::NTITL~j) TO COSTS .

Diningvv- e 1~.:?,-c obo su.e d. Slzoteni Ngc obo before Chief Manili"llakayise for three head of cattle being a co~:; and its increas e \'Ihich he claimed to be his by virtue of e ~~~change for another beast killed by Skoteni o The Chief gave j ud_:;rnent for Dininswe for three head and costso Against this jud.c-:,ment Skoteni appealed to the Native Commissioner who arnend ed the Chief 1 s j udgr11ent to one in favour of Diningvve for one beast ar1d co s ts. Skoteni has now lodged an appeal with this Court a 2;ainst the judgll1ent of the Native CourDissioner in re0 ard to t he c,_uestion of co s ts on the fo lloiir ins; grounds~-

1. Thu.t the Res~Jondent C.1ining•Je )? sued the Appellant (Skoteni ) for thre:e SDecific c a ttle b a sing his action upon an exchru1~e be-'cvreen h i m ~nd t he l a te :nomuhomu vhich cattle Appellant h as in his legal possession and to which claim the Appellant denied liability but admi t ted having borrm:ed one beast from the Resp ondent? that the Native Commissioner found that i\ppellBnt did bo l"'r O"~tJ a beast end vras not indebted to :rte s:ponr~ent fo r three beasts .

- 3 -

2c Th3.t the Appellant had succeeded in the dispute bet;,reen th~ part~es ru1c~ also i n his appeal from the judgment of the Natlve Chlef ano. therefore should not have been ordered to pay costs.

3. That the evidence established tha t the Appellant was at all times v·rilli:Ig to repay the said loan and that he tendered sarae before the uatter came before t he Chief in the first instance.

The facts out of which this case emerr-re s and v.rhich are not in dispute are tha t about seven years ago Homw1omu t he father of SiJcote:1i (Appellant) becarne ill 7 tha t he had a cravins for liver, that Appellant borro~·,..ed a black bull about t wo years old from the Hespondent and slau~hterecl it for Homul10E1U ·\'rho died shortly thereafter o

Respondent stated that Homuhomu promised to give him an 11 insundukazi 11 heifer calf in exchang e for the black bull, that t his heifer had tvvo i ncrease and he cla i med these three beasts.

Appellant stated th2.t while he aclrnitted being liable to Respondent f or cne beast \rhich he had tendered, no promise was 111ade that any specific beast v:ould be returned in repayment of t:1e black bull slau~·htered.

~]"he tender v.re.s e.0Jni tted by :ct.espondent' s Counsel who /t was prepared to acce?t the beast tendered toge ther u i th costs up t o th.J.t date.

I n the opinion of this Court the Appellant having been suc cessful in ~lis ap p eal 2-&ains·~ t h e jucJ.sment of the Chief shoul d have been av!ard9d h is costs . The Native Conu-nis-­sioner found 7 and in the opinion of this Ccurt ri.::;;htly, that no specific beast had been promise6 to ~8spondent and it follovvs, therefore, tho..t the Native Comnissione::: ... disbelieved the statements upon Yrb ich Respondent based his claim.

The aDPeal is allm:red 1:r i th costs in all Courts and · the judgment of "" the Native Corilinisslo · LJel eeL· ~ read: "The judocrrnent of Chief Ea.ndhl akayise is altered to one in favour of Dinin:)·.re for one b e3.St or it s value 'l £5."

R::Q2~_B: The Court notes the nwnber of occasions on whicl1 this cas e ~ ... :ras adjourned a t it s hearing before the Native Conu11:.s­sioner and in particular entries appearing on the record such as the following~ t:A.s the attor~1eys for the parties have not put in an appearance 7 c as e adjourned to a date to be fixed by the Clerk of the Court . n 11 1:,~. A. S. Knox and Mr. A. D. G. Clark (i.e. 9 Counsel for the parties) do not appear . 11 11MessPs. Knox and Clark do not appear" and again " t~r" A. S. Knox ru1d Ivir · A,D.G. C:Lark do not appear."

The absence of ru1y exp lanation on the part of Counsel for the parties as to thelr reasons foi' failing to appear on the se several occasions leaves an W1favourable i mpression On the minc~.s of the Court.

CASE NC. 3. o•••• •o

• 1 J...

I

- 4 -

.Q£\~i.~J{Q: .. --·~ 0

A.:f:.I}Il\ ___ l'{KA_~- _8:s .. s_i_~_t_~g__py __ h_e_r_ J1.~-~-l?~a.gqj _ _I.i~-~A11Q§. .. N.q~{~NXA )[§.:~ _tJAXJ:.\ft.f¥. -~lr:.(A_ -~tT:Q . . E-QY.l3 .... Q±!fE.RS. .

l\i/U1ITZBU.dG. 29th January? l S35 · Before F .IL Brownlee 7 President i ILG.~j . Arbuthnot? J .T. Draatvedt 7 Members Native Api_)eal Court (Transvaal an.d Natal Division).

Guardianship of married '.\Toman - Abduc tion - Assault - Sections 130 2.Ilct l4U J Natal Native Code.

Bergville. An appeal froE1 the Court of Ifative Comraissionel"'?

A 1.l0L1AN AS..JAULT3:J BEFORE HER TvlARRIAGE iVIUST BE ASSISTED BY HER !-:JJS:D~\FD I N \ CLAI I.:I FOR DAHAGES BROUGHT BY HER AFTER HSR IvL;RRIAG3 .

The bas is 0f this claim is briefly that the Appellant? Alina Nkala, was abducted by Respondents l? 3 and 4 on the 28th May? 1934 7 and on the follovring day these three men forcibly divested h er of :1er garments exposing h er while menstruating and thereby subjecting her t o "ineffable indignity 11 ? shame and fear, and that this as s ault brought about a total cessation of menstrua tion , Respondents Nos. 2 and 5 are cited as being liable in terras of section 141 of t he J.tevised Code of Nativ8 La1N· for the delic ts of Nos o l, 3 and 4.

The Appellant? i~.lina, \Yas married to Lazarus Ngv1enya in September 7 1934, subsequent to the date of the alleg ed assault .

The Native Comnissioner holding that sections 13C and 140 of the Nat c.l Code of Native Law applied? dismissed the summons v'T ith costs stati ng in h is reasons for judgment that 11 the right of action accrued on the 2Sth Na y? l934 J while the Plaintiff uas living under the tutela.2;e of her father and that consequently) if the action i s successful 7 any swn of money recovered \vould become the property of the house to which she belonged pri or to her customary WJ. ionJ and not to the house to ·which she nO\'l belon;s ? ~d she therefore had no .~.9.9_11_s._~-~-8:11:9:i in_ __ j_ll:sJ.J£io. to appear assisted by her husband. 11

This Court comes to tJ.1e c onclusion that the basis of the action i.s tuofold? firstly in respect of abduction and secondly, in regard to indecent assault the which is not . inherent in the act of 2.bduction 7 and that vvhile a ri[fht of J. action in regarC. to the ab~_uction ~vou!a r est J:n Ali1~a 1 s father 7 .1 t~ lllJUl"'la arising q~t of tll~ __ alles~ e.f1__a_§_§aul t woulo. be a .f c~se of action ve s tin,s; in the p erson u-oon vrhom the wrongs had been co111111 l '(, ted.

The Respondents have a r g1..1 ed that wl1atever as sault they may have been ,~~uil t y of \ras co~:rr:d t ted before Alina 1 s mari'iac;e c.n c. t hat t l1i s beint:: so? t he action should h ave been promptly instituted by her father? her natural gua r d ian and not by hei•self assis ted by her h usband .

But . • . ,,,,.

- 5 -

But it must be borne in mind that the g irl having by her marria~e passed out of the tutelage of her father into tha t of her husband. 7 the l a tter is undoubtedly the right person to assist her in ·0he claim f or assaul t 7 since he was her le2,·a1 guardian at the time a c t ion was taken.

The appeal is sustained with costs, the judgment of the Native Conunissioner s e t as lde 2nd the record referred back to the lower Court Yri th tlle direction that the claim for damage s for assaul t be heard a nd detei'mined on its merits.

PRETORIA . 21st March 7 1935. Before F .H. Brovvnlee 7 President 7 C.J. Svveeney 7 J.C. Yeats 1 Mer11bers Native Appeal Court (Trans­vaal and Natal Division) .

Native Estate - Customary Union - :Native dying in employment -No.. ti ve Connnissioners 1 Povve r s - Government Notice 1664 of 1929.

A.n appeal from t he Court of Native Comrnissioner 1 Benoni.

ALTHOUGH A NA'J:II VJ:: COivil,:I SSIOH::;:R NEED HOT ~NQUIRE I1TTO A NATIVE ESTATE \JEERE A CU3TOI.:1-<..RY UNIO:tT \U\.S CONTRACTED AI-ID TH~R~ ARE r!O DIS?Ur:l~S 7 A NAT~V-:8 COl,IT,,USSIONER I ~y DO SO \/HEN A NATIV3 'iAS 7 AT THE TIIlE 0}1' HIS DEATH, IN EMPLOY OF SOME PERSON·

This cas e ~vhich co.nes from the Native Commissioner of Benoni \''!as previously bc;fo~--e this Court in its session in Iv!ay 7 1934, when there ·rHJ.S an app eal against the ruling of the Native Commissioner on an e:::c eptiono The appeal was allowed and the record 1.1a.2 referred back to the Native Comm.issioner for the hearing of ru1y f urth ,3r evidence either party might desire to adduce 7 t hereafter tb.e Native Commissioner to give a judgT11e:t1t on the r.1eri ts.

Further evidence uas tal'~en and the Native Commis­sioner entered j u dgment as follo·ws;-

nclaim 1. For Plaintif f f or ejectment of Defendant from Stand No . 286 7 Benoni Location. 11

11 Claim 2. Absolu tion judgTnent 7 Defendant to pay costs of action e:i.nd co sts of application made on 21/8/ 34. 11

As ainst this jucl..,:::::ment &'1 appeal has nov1 been noted to this Court on the 0rounds ~ -·

11 (l) Tha t the exception should have been dismissed 1 in a s E-:uch as evidence h ad to be taken as to the Native Law a11c1 Custom on the question whether according to rativc La.w and Custom the heir of the deceased steps into the shoes of the deceased

and. o • o • o o

- 6 -

and is entitled to the property itself and not merely to the pr oceeds 7 in the same manner as he is obliged to pay the debts, whether there are assets or not.

"(2) That in terms of Section 23(3) Act 38 of 1927 1 the hous e in question had to devolve upon the male heir according to Native Law and Custom.

"(3) That in terms of Section 2(d) of Government Notice No . 1664 dated 20th September, 1829, the house in question had to devolve 7 according to Na tive Law and Custom 7 upon the male heir.

11 (4) That if there is anything in the aforesaid Goverruuent Notice No. 1664 authorising a Native Commissioner to realise the assets otherwise than in accordance with Native Law and Custom, such provision is :y_l_'"trA .. ~i.!~.~§~ as being repugnant to Section 23( 3 ) of Act 38 of 1927.

"(5) That even if Section 6 of the said Government Notice does authorise the sale ru1d even if such Regulation is 1n:B:.E?.:~_'L_i_F-.es ~ both of which facts are denied 7 the exception nevertheless should have been dismissed7 as evidence was required that the late George Ndaba was in the employ of any person or that he died without leaving a \/ill.

"(6) Generally ~ that this matter should not have been decided on an exception 7 firstly 7 because no Exceptions are provided for in Regulation 26 of Government :Notice No o 2253 of 1928 (Regulations for Courts of Native Comnissioners in Civil Proceeding s) and 7 secondly, because it is entirely against the policy of procedure laid do·vrn for Courts of Native Comn1issioners to dispose of a matter involving difficult questions of law and fact by vvay of Exce~)tion .. "

From the evidence it appears that Appellant was married to her husband George Ndaba in accordance with Native custom. On the death of her husband she 1vent \·ri th Respondent to the office of the Native Cornmissioner to report the death where Respondent put in claims against the Estate runounting to £l6o5.0 being £6o5. C funeral expenses and £10 money advan.ced to the deceas ed. These claims were lodged in the presence and hearing of Appellrul.t vvho agreed to them.

At a later date Respondent applied for permission to purchase the building on Stand No. 286 7 Benoni Location, property in the estate of the late George Ndaba7 and was allowed to do so o The purchase price agreed upon was £40. From this amount Respondent deducted £16.5.0 - liabilities to him by the estate as detailed above and paid the balru1ce 7 £23.15.0 into the office of the Native Commissioner 1 vvhere­after he obtained a certificate from the Native Commissioner that he had bought the bv.ilding and that there was no objection to the stand bein.s transferred to him. On the strength of this certificate he uas g iven transfer, from which time it is sta ted and not denied that Respondent paid whatever Municipal rates \IYere due on the property o

Appellant . . o • o "

- 7 ·-

Appellant :i\io. 1 7 the widow of George Ndaba, continued to reside in the buildin~.) on the stand referred to and is apparently still residins there.

(It may here be conveniently stated that during the hearing of the case application was made f or one Eddie Ndaba~ said to be a son of the l a te Geor£~·e Fdaba by his wife the Appellant Napoza, to intervene as Appellant No. 2. No objection was taJ.<:en to the proj_Josed intervention provided the child was 11 ,

produced in Court. A child said to be Eddie 1Tdaba and son of the late Geor 8e Ndaba by his v1if'e lTap oza was later produced to the Court.)

During the ar6wnent before this Court it was su[;gest ed frora the Bench to the Counsel for the parties that the matters at issue appeared to depend upon whether or not the Native Commissioner had acted lawfully in disposing of the property of the l ate George JJdaba. Counsel for the parties having agreed that this \'Ias so, argument was confined to this pointc

Section 23 sub- section (4) of the Native AdJ"1inistra­tion Act (38 of l f)27) lays down that any dispute or question Ylhich may arise out of the administra tion or distribution of any estate shall be determined by the Native Commissioner. In other ~.'lords 1.vhen c. di spute or question actually arises and then only does the Native Cornrn i s sioner step in and hold an enquiry as provided for under the regulation.

From the evidence of both parties it is clear that when the death of George Ndaba Has reported to the Native C0111i·11 issioner by Appellant Napoza, Respondent was actually with her~ that he there and then submitted certain claims against the esta te to vv· hich she agreed, this plainly indicating that no dispute or question had arisen in regard to the estate. It nas only lons afterv;ards rrhen the Appellant Napoza vras required to quit the premi s es that she produced the alleged heir Edd.ie (Appellant no. 2) and only then did the dispute arise. Up to that sta,:;e Al)pellant Napoza had acquiesced in the Respondent 's claims af~ainst the estate. It is obvious then that nothing in the nature of a question or dispute had arisen requiring determination by the Native Cormnissioner who, after the death was reported~ proceeded to dispose of the estate property in accor dance wi t~l law. He was not 7 in the opinion of this Court~ under the circwnstances disclosed to him~ required to hold an enquiry.

But to come to the real point at issue~ Section 6 of Government Notice Noc 1664 of 1929 provides that lNhen a. Native dies in the employ cf any person then the Native Comrnis­sioner may deal ~-ri th the estate.

There is evidence on the record \"Thich is not con­tradicted that un to the time of his death George Ndaba was in the employ of s ome pe:i."Son, The Native Cm~mnissioner was therefore justified in dealin~£ v.ri th the estate by way of selling the ~state propert :r or othervrise, it being borne in mind that there Yias nothing to indicate to him that a dispute had arisen or that one might arise in the f'utureo All he knew from the facts placed before him by the parties to this suit was that the deceased George Ndaba had left property and had incurred certain liabilities.

In o o o o \) o o •

- 8 -

In the oplnlon of this Court the lJati ve Cormniss ioner acted correctly and within the scope of his legal authority ·in dispos ill[, of the property of the late George Ndaba. The appeal i s accorclin_:_,l~r dismissed Hi th costs.

~,TANc.TOLA DUB~ .\ND IT~U.ITILANGA VS. MBOZA ALIAS BOY -~ ·· ---·· ·-- ... --·- ·· - __ , _____ --·- -- · 1fG:.~rfi~f ,------------ ·--·· · .. ~-~~- ·

PRZTORIA. 22nd March) 1935. l3efore FoH. BrO'iNnlee? President 7 C .J. S\1eency, J .c. Yeats 7 Memb ers Native Appeal Court (Trans­vaal and Natal Divi.;ion).

Liability of Kraal--head - 'jife sued unassisted by husband.

An appeal from the Court of Native Co::-lu11issioner 7 Piet Retief'o

IN AN ACTIOIJ AGAIHST A I~:LL\.R:i.IED '.!OTMuT VISITING AT A K.:.iAAL? IT IS NOT COM?ST:s:;UT TO JOIN THE KRA.AL-HEAD.

A I "AR."'=liED }TATIVE i !0! J.\lT ~,1f.\.Y Forr SUE OR EE SuED IIT HER OJrJ l'.llJ iS 'J I':liiCUT LEAV.S FROU A COUR.T OF LAJ J.

In the Court belo• r the :rtespondent sued the Appellant for the return of a cow a.nd calf S3.id to have been unlm·Jfully tal< er. from the lcra.al of Respondent oy A1J~~JellaDt Nanhlanga and for ~c.5 d8Ji1azes o Appelle.nt lia:1j o:a is sued in his capacity as h e a d of the kraal ,_.rhe:.:·e :L·Ta.~.i!.1lanca re sides .

Appellant l\Ianj ola p lec.ded that he hacl not ... emoved and uas not in possession of any cattle oelo11gin6 to :rtespondent, that he v1as not responsible f'or Ap];Jella."1t NamhlC?cil.ga, vvas not her guardian and that she should be sued assisted by her husband. He further pleaded tha.t the cattle v'f ej~e handed over freely to Nar11hlansa~ they be:.ng the property of her husband.

Appellant 1Tcu11hlru1s a pleaded that she is married to one Johannes Karnbula and shol)_l0. 11ave been sued assisted by hirn, that Appellant l.Tanj ola has nothing to do with the matter 7 that the cattle, v;rhich she took 1,:rith Respondent's consent, are in her possession.

The Native COl~n.issjoner entered j'1.1dgment for the retur:1 of the cattle, £2 cJau1ages and costs of suit.

Against this judgraent an appeal has been lodged "~N i th this Court on the ~round.::>;-

(1)

(2)

( 3)

That it is a.c;ains t tne •.reight of evidence.

That the action not bein£:: oJ.1e of spoliation the oVJne:'ship of the stock sho'L".ld have been considered ,

That A.p-oellant ncu-Dhlan~a sboulcl have been suecl assiste2. by :1er husband OI' ~=:;uardial1 ·

(4) o• •••••

- 9 -

(4) That Appellant is n ot an i nrnate of Manjola ls liTaal and that he is not liable for her acts .

(5) That the amount of damages i s exorbitant .

( 6) That the Native Comrni s s ioner erred in discarding the evidenc e of the Di pping Inspector.

In the opinion of this Court it h a s not besn definitely proved that A)pell ant Namhlanga was any one other than a visitor at the kraal of ~·rhich Appellant Manjola is heacl.o In other vJords 7 it has not b een proved that she is in t:1e position of one for 'Hhose delic t s t h e kraal- head could be held respons i ble.

In the Natal Code of Nati ve Law an "inrnate 11 of a kraal for whose delicts the kraal-head may be held responsible

''means a person usually residing therein". There is nothing to shovr that Appell a.L"lt No. 2 ·vras a ~Jerson 11usually residing" within the kraal of Appella.n.t lTo" 1 . \Jhat i s laid down in the Natal Code may Guitably be applied to t h e parties to this suit vrho are obviously members of a tri b e allied to and closely associated v·Ii th the tribes resident in Nat a l to whom the Code applies"

This Court holds that t he re is i nsufficient evidence UlJOn vvhich to v1arrru1t the citing of Appellant No. 1 as eo-defendant.

It is clear from the record tha t Appellant No. 2 Namhla113;a i s a narried vror:1an 7 that h er husband is still alive 7 that the raa11 an d \"I oman have been living apart for some tirne , ai"ld .that Narnhlanga vvent to v i s i t her husband 's sister at the kr aal of I\Ianj ola. She states~ 11Ek h e t my man se suster by r1Ianj ola gaan ku i er. 11 I t appears tha t her husband 1 s sister .is Manj ola 1 s v.r i f e .

It i s an a c cepted principle that a mar ried native wo1-:1an may not s ue or be sued unassisted by her husband . To this principle t h ere may b e exc ep tions .

In the c ase of Prisc i lla Moto t si vs. Cl1ief Athlone Iviamab olo h e ard before this Court in Aut;ust 1934 it was held t hat it vras compe t ent 1"or the Native Commis sioner's Court to grant 11venia agendi ;r t o a IJat.i ve Homan \.ivhere circurns t a .. nces j ustif ied ita TI1is rul inz being accepted the converse must apply , that is t o· say , t hat where the c ircwnstances justify it appl i ca tion may be ma de to the Native Commissioner for p ermission to sue a marri e d Native vroma11 in her mrn name w1as s isted~

This Court h aving found tha t there Has not suffi­cient evidence to j us t ify ~~e citation of Appellant No • 1 a s a co-defenda11t, there r emains to be discussed the position of Appellan t No. 2 c

This Court sees no reason on the facts now before it to d.epart from t h e princip le that a married Native woman may not sue or be sued in h er own name and the circuli1s tanc e s so far disclo s ed do not \.rarrant a departure from thi s princip le ·

The Court hold s on t h e f a cts before it t hat Def end-· ants h ave not been rightly c i t ed, in that it h a s no t been

shown .• o o •

- 10 -

shovrn that Appellant No. 2 is an "inmate'' of the k.raal of No. 1 for vrhose delicts No. l is responsible and that Appellant No. 2 is a married native ·woman 'Jho may not sue or be sued in her mvn narne vri thout leave being granted by a court of law·.

The appeal is allowed 7 the judgment of the Native CoEmlissioner set aside and a judc:,T11ent is now entered of "Swnmons dismissed 'l;vi th costs."

9)~§~ J'{Q_·~ _§ 0

S . D. LETHOBA VS . RAL:ZTSEf.IA lT.i\DE .t\.ND ~!~P~~~-~~~~TI[Gif\_~'Z$.~-~~~~wtiiJ~:~~Q .·- ----

PRli:TORIA· 15th :May 7 1935. Before F.I-L Brounlee 7 President 7 Native Appeal Court (Transvaal and Natal Provinces).

Review of Taxation ·- Fees for conducting appeals - Tables B and C7 Government Notice 2254 of 1S28c

WHERE COUNSEL CONDUCTS AN APPEAL 7 ASSISTED BY AN ATTo=n,r&? THE LATTER C~\NlTOT BE REGARDED AS CONDUCTING TH~ APPEAL AND HE IS l'JCT ~lTTITLED TO A FEE UNDZR ITEI~1 2. AN ATTORNEY iiJHO P::l:RFORI.IS ALL THE '\fORK IN CO:N1'TECTION UITH AN APPEALJ IS NOT . ENTITLED TO TEE FEE 'lJlTDER ITEM 3 Q

This is an application for r eviev.r of the ta.."Cation of Bills of Costs by the Registrar of this Court.

Objection was taken to the review on the grounds that Applicant had accepted payTHent of the amount taxed and it was held in the c ase of l,1ichaelis vs. '\leston & Co . 7 4 E.D.Co 306 7 that such action uas a bar to a review of taxation. In viev-r of the later decision in the case of Rademeyer vs. Krook 1 1920 o.P.D. 13~ however 7 I am unable to uphold this objection .

In each of the above appeal cases~ Lir. Advocate Stein of Johannesburg conducted the case for the successful · party. It appears that L~r o Attorney Raubenheir.aer was also present in Court for the purpose of assisting and advising his Counsel, The fee for conducting the case in terms of Item 2 of Table "B 11 of the Schedule to Government Notice No. 2254 of the 21st December, 1928~ was increased by the Cou1·t to £4.4.0. Mrc Raubenheimer in each bill of costs claimed £4.4,0 for Counsel's appearance 7 £4.4.0 for his own appearance in Court a nd ;21.1.0 for his other work under Item 3. The Reg istrar disallowed the item of £4.4.0 for l\1r . Raubenheimer's appearance in Court on the grounds that he was not conducting the case in terms of Item 2 .

Mr. Raubenheimer submits that, if he had conducted the appeal himself 7 he would have·been entitled to the fees und.er Items 2 and 3 of Tabel "B" so that, if nothing extra is allowed for Counsel's fee 7 the words "additional thereto" in Table "C 11 become meaningless. I am unable to agree with this argument. I consider that 7 if Mr. Raubenheimer conducted

the coo~ o o o

- 11 -

the app eal himself, he would only be entitled to the fee under Item 2 of Table rrB" as it is e~~pressly provided therein that this fee is to include §)1 charges of Attorney in Appeal Court. Tll.e fee under Item 3 is for "all other attorney's charc;es 11 and these words cannot have the same meaning· as "attorney's other charges. rt It seems clear that, if one ~ ,: attorney is concerned in an appeal, he i s enti teld to the· !} ·,

fees under Item 2 only anc1 7 if t wo are concerned, the one wh t '[•

conducts the appeal is entitled to the fee under Item 2 and ':;i the one who note s the appeal~ holds consultations etc o is · ~:~·· entitled to the fee under I teLl 3. · ··

I am satisfied that the Registr a r's ruling is not only in accordance \Ii th the rules 7 but is consistent v i th the policy of the Department that litigants should not be deterred from seeking the as s istance of this Court by the f'ear of having to meet a heavy bill of costs in the event of ru1 unsuccessful appeal.

ESHOJEc 15th April 7 1935 Before F.H. Brownlee 7 President, R. \J . Hancock 7 M .~.c. Liefeldt 7 Members Native ApJ,Jeal Court (Na tal anci. Tra.nsvaal Provinces),

Judzment - Liquid Debt ~ Taxed costs - Set~off.

An appeal from the Court of Native Comrnissioner 7 Empangeni o

WH3RE A PARTY OBTAINS A JUDGLCNT I N HI S FAVOUR FOR A BE. \ ST TK3 V.A.Lill OF ~.niiCI-: IS FrCED BY TIB COURT BUT COSTS ARJ:: AWARDED AGAI NST l-IIM? THE COSTS ~JHElT T.!\".>G~D r.'I.A.Y BJI: SZT- OFF AGAI NST THE PRI ITC IPAL DEBT"

In the Court belmv Plaintiff sued Defendant for £14 damages alleg ing that he (P1aintiff) had obtained a judGment against Defendru1t in the Court of the Native Commissioner for the delivery of a beast or its value £4.10.0 7 Defendant being aY'Iarde d costs vrhich vvere taxed at £4. 2 , 3. Plaintiff claimed to set off his judgment against the costs due to him by Defendant and s tated that Defendru1t had at no tin1e handed over the beast or po.id its value.

Defenaa11t 7 about Sep tember , 1932? caused a writ of e~~ecution to b e taken out against Plaintiff f or £4.8.6) the amount of costs due by Plaintiff as the result of which four cattle were attached. Plaintiff was g iven a limited time within Vlhich to d i spose of the e a ttle a ttached in order to avoid a forc ed sale. The cattle v1ere sold for £5.15.0, £5.5c0 of which he pai d over to the T'!Iesseng er i n satisfaction of the ar11ount of the r.rri to Plai.ntiff states that the cattle sold were •,rorth £14.10,0 to him and that had he not been compelled to sell them they vrould have realised that amount . He stated that because of Defendant's •J·rrone f'ul action intakinG out the writ he

suffered o • o •

.. 1 2 -

s uffered dama;:~ e to the a.r11otu1t of ;::14 and claimed jud&,ment for tha t amo unt

The Native ComE1issioner g ave judgment for Defend~ ant 1o,r ith c osts and aGainst this judgment ? laintiff has appeal-­ed on the 0rounds:-

(a) n1at ~1e findin~ of the Native Con~Dissioner as a fact that the Plaintiff (:~esp ondent) ''.ras at.rai ting instructions f or the delivery of the animal is not supported. by the evidence a.t'ld tha t there is no evidence that the Defendant (Appellant) accep t ed or ever intended to a ccept the animal .

(b) Tha t the Native Co1111n i s sioner ·ras vvron[; in find ins that the C:.eb t s betv1een the p&rtie s ~ 1ere not of the same kind anc~ that 3.esponDent 1 s debt had n ot been liquidated and quoted the C2cSe of Symon vs. Brecl1er 1 T , ,3. 1904 9 adding that an offer by the nespondent to settle the j u dG:,Tnent (in the al terna·­tive) in cash mi~)1t validly have been made and could not have been refused by the AppelJ.ant.

(c) That the Native CoEJmissioner vvas n rong in holding that the com1non l an of set~ off is not pa.rt of the Native lavv of Zul uland,

( d ) That there iJas no evidence that Appellant had at all time s be en ready t o n· i vo delivery of the animal awarded and he should have held that the is sue of the writ was WI'0110ful.

The Native Con~ni ssioner ruled~--

(l) TI1a t t he doctrine of set-off f orms no part of the Nat ive la'll as kn o'l7n i n Natal and Zululand.

(2) That the debts 11ere not of the same 1 • ,., J(lnQo

(3) Tnat Defendant 1 s debt had not been liquida ted.

Now section 11(1) of Act 38 of 1927 reads;·-

11Notwithstanding the provisions of any other law 7 it 11 shall be in the discretion of the Courts of Native 11 Commissioner, in all suits or proceedinc;s betueen Natives "J_p.vol ~__in.':.: g_ue stions of qus~~om _ _fo_ll~q_~:~9-__ qy~_J.II§:j:,~~:ze.s. 7 to 11 decide such questions a.ccording to the Native law applyinG 11 to such except in so f <?.r a.s it shall have been repealed~ li etc. il

The claim in this action does not involve 11 questions of customs follovled by Natives 11 nor is it in respect of matters Hpeculia.J.""' to Native custom. 11 It concerns purely a matter of procedure and the la~v to be applied is the coE1E1on l a.\1. This matter was fully O.eal t with in the c2.s e of John l'Tzalo vs. ~yci.ia I•:aseko 7 (N .) •.• c. (T. ru1c1 l'L) Selected Decisions 1 July, 1930- December 7 1 931 ? Case IJoo 14).

The value of the beas t h ad been fixed at £4.10.0 by the judr)nent of the Court aJ1d the c.1ebt owed by Defendant vvas therefore liquidated.

The only other p oint to be considered is whether the debts are of the smne kind.

Il1o o < o c c o o

·- 13 -

• In the case of Iv1osenthal Bros. vs. Coghlan & Coghlan,

5 H.C. G. 87 7 a writ of arrest a gainst F. was obtained at M. 1 s instance in respect of a debt due u~Jon liquid documents, but was thereafter discharged with costs. F- refused to set off the costs against the larger sw11 due by him to l'Jl. on the liquid docwnents 7 and through his Attorney c. took out a writ for the amount. M. paid the amount and thereafter applied for an order on c. to refund the amount: It was held that the writ was wrongly taken out and that an action to restrain the execution would probably have been successful, as the judgment debt was extinguished by cor11pensation but that as F. h ad not been joined the application must be refused.

In the cases of Van Niekerk's Trustees vs. Tiran 7 1 s.c. 358 7 and van Standen vs. Hopkins 7 3 s.c. 81, it was held that there v1as no necessity of first paying· taxed costs? a s they were j._pso ___ j_~_r_e_ set off against the original debt.

On the authority of these cases it is clear that the judgment for costs was set off against the principal debt, and thus the v1ri t Has wrongly taken out.

Plaintiff is entitled to recover da.mages, He claims £14 but has failed to prove that this vras the actual value of the four head of cattle he sold. All he is therefore entitled to recover is the a.moUJ.J.t paid by him to the Liessenger namely £5.5.Q.

The appeal is allowed with costs. The judgment of the Native Corunissioner is set aside and judgment is entered for Plaintiff for £5.5.0 and costsc

('

ESHO\/E. 16th April 1935 , Before F.H. Brownlee , President , / }--.., R.\l. Hancock 7 M. L. c. Liefeldt 7 Members Native Appeal Court

0, ~;.·: )

(Natal and Transvaal Provinces). ~

Damages for slander - Judgment against wife "duly assiste · (!lt _ by husband" - Liability of husband - Native custom o /.

An appeal from the Court of Native Commissioner, .v Entonj aneni. ~.

UNDER NATIVE LA....~/ i\ND CU3TOH A EUSBAND IS LIABLE FOR THE TORTS OF HIS UIFE. THS F_\CT THAT HE IS CITED AS ''ASSISTING HIS UIFE" DOES HOT FREE HIT~ FROT~I LIABILITY IN ANY JUDGHENT TH.r\.T UAY B:S GIVSN.

From the record it appears that Respondent, Mag,wababa, sued Makundu Majola "duly assisted by her husband Ivlar,.cekeni Ivihlonn·o 11 on a claim for £15 7 damages in respect of a ~landerous st~ternent alleged to have been made by the wife, Makundu.

The . •.•..

- 14 -

The Native Co..11misoioner entered a judgment in favour of the Respondent, Magvraba ba? :iqr £10 and costso A writ vias ", issued in conseq uence of t hi s jud...:,0Jnent upon which certain cattle 7 the property of the AlJpellant? iiJere attached. and sold.

Thereafter the A)pellant sued the Respondent for the sum of £12·18.10 1 being the amount realised in respect of the s ale in execution "of certain cattle the property of the Plaintiff (Appellant ) vrrone;fully and unlawfully attached at the instance of the Defendant (Respondent) in the case No. 43/30 t iherein Defendant was g iven judgment against Plaintiff's wife 7 r.,Iakundu Uaj ola." The suramons goes on to state;-

"The said cattle so a ttached and sold 1:1ere the property of the Plaintiff IHho had not a.ssumed liability for the judgment against his · ife , 11

A stat8ment of facts adii.1itted by both parties \·ras filed in \1hich it is stated 1 i-.f:lj:,_~F__._Cll .. iE? 11 !'Jragcekeni no'N claims from Lia[}vababa • " o ~ o ••• the value of cattle sold in execution under the jud8ment oeoooo • • en the ground that they are his property and that he is not res_ponsible or liable under the jud[-;r.nent given against ~1 is vrife .. This is the point for the decision of the Court~"

In this ac tior.. the lia ti ve Cor.nnissioner entered judg­ment for Defendant Hi th costs ~J.d it is against this judgment that an appeal has novr been lodged~ the :;rounds of appeal being that~-

(1) The judgment i s aL:;ainst the vieight of evidence and bad in law .

(2) That in the c o.se of Hag\Jababa Nzuza versus Makundu Hajola, culy assisted by r.fagcekeni I·~fulongo 7 No, 4 3 of 1930? the said 1-:Ia.e-cekeni Mhlongo~ being thE: husband of the said Makundu 7 was joined solely to give the said Hakundu / "locus standj. in judicio" anG. cannot be made . liable on any jud31Pent g iven against the said ~Jakundu.

(3) Alternatively tha:c the Native Cmmnissioner~ on his facts founG. proved and reasons for judgment, is wrong in assu.uin6 tl1a t Appellaflt tacitly acquiesced in 3lld connived at the defar.natory statement made by the said Hakundu of and concern­ins the Respono.ent .

In considerin:;; this case the Court must naturally closely associate the a greement of the parties with the grounds of the appeal~ In the facts acL'Tii tted by the parties the issues are narrov1ed dorJn to one cardinal point. The grounds of appeal elaborate the Appellant 1 s !2on-":.ention on that point ,

To the mind of thj.s C8urt it seems that the questions to be c ons1c1ered are~ ]r~ ether tho Appellant Magcekeni is to be re8 arded as a rnere fi~urehe.'lC in the original suit 7 in "~:vhich he responded to the c1aim? .s o :_cl~/ in order to g ive his wife 7 the adinitted tort feasor, l e~al stc.tus in Court? or V'Jhether in accepting c i tat:Lon he 'Jndc:: ... ?·t·. ook~ as a eo- defendant, full liability in res_9ect o f -WJ j'lG[~1!1ent that might be delivered;

and~ o o c. " o c.

- 15 -

and, finally, v~hether such liability might rightly be attached to him.

There are innwnerable legal decisions based upon ~,. Native law and. cus~om which show that a J:;usband is _liable for l·tJ the torts of hls Wlfe, not merely as a f1gurehead 1n order to IB give her legal status 1 but also as the property holder from i · whose possessions restitution may be made to the person wronged .iJ;

Accepting the many dicta laying down that a married woman (except under particular circwnstances) may hold no property, the question arises as to v1hence the sufferer is to obtain redress if the vrife from her position as a minor and so without property is unable to mal<:e amende profitable to the one she may have wronged <

In the matter under consideration the judgment was given against the parties the woman being 11 duly assisted by her husband. 11 In our opinion the words "duly assisted'' impose on the husband an obligation to defend the action if there is a defence and to meet full liability should that defence fail (see case of Ivllondleni vs. Magcaka, 1929 N.A.C. (C. & o.) lO)o

If the contention of the AJpellant that he is not personally liable for the torts of hls wife is to be accepted by this Court then Vle are to act counter to an accepted and consistently applied principle of Native law·.

This Court sees no reason to differ from the judgment of the Native Corrnnissioner which is based upon sound principles of Native law ~d we hold that, in circurnstances such as this recQrd discloses, the husband is liable for the torts of his wife, and that the fact that he is cited as assisting his vrife does not free him from liability in any judgment that may be given.

The judgment of the Native Commissioner is sustained and the appeal is dismissed vri th costs o

With all due deference to and respect for the learned President and my brother Hancock7 I feel constrained to dissent from their views in this matter.

r1

In my opinion the question of the liability of a husband for the torts of his wife is not an issue in the case before the Court o The Plaintiff (noirv A~pellant) claimed 11 the sum of £12.18.10 being the amount realised under the sale in execution on the 4th December, 1934? of certain cattle the property of the Plaintiff, wrongfUlly and unlawfully attached at the instance of the Defendant (now Respondent) in the case No. 43/30 7 vvherein Defendant was given judooment against Plaintiff's wife Makundu Majolao 11

In the case referred to one Hagvvababa Nzuza obtained judo0111ent against L1akundu Liajola duly assisted by Ma.g-cekeni llifulongo for the sum of £10 as damages for defamation and costs.

The Native Commissioner erred in considering the evidenc~ recorded in that action for the purpose of giving a

ruling .. o .•

- 16 -

ruling on the husband's liability in the present case. The only i ssue before him ',:ras Vlhether a writ of execution could be issued against Appella nt in his personal capacity on a judgment g iven aga ins t his ,,rife duly assisted by hir.n as her husbando

In Van Zyl's J u dicial Pra ctice, Vol. I? 4th I edition 7 p . 264, he; s tate s , "If a juG.GJUent has been obtained a gainst a person in h is representative capacity the writ should be issued a[~·e. ins t him. in tha t capacity ? unless the Court othei'IIi r..>e speciall~r directs or makes him personally liable on ac tion brou.c:,ht . "

No'..r there i s clea rly a distinction betvveen a wife bein;..· sued ass isted by her husband and. a husband being sued [I in his capacity as husb211d. In the former case the wife beii1g a minor in the eyes of t h e la·w, cannot sue or be sued unassis ted . In the l a tter c c:.se the husband is sued in his capacity as husband beco.use of his liability for the torts o his spous e.

In the cas e of 1\'Ilondleni vs. Magcal<a~ supra? the Defendant was sued "in his c apacity as husban.d and guardian of his Hife". The wife '·ras not sued assisted by her husband as in t h is cas e .

The difference betlire en these two expressions is well illustrated in the case of spouses mru"ried out of conmmni t y . The ·:ri ::'e i s individually and separately responsible for defamation uttered by her and her separate estate alone is liab l e f or damate s . The '.I i f e must? however~ be sued a ss isted by her hus band - (Nc::.than, Lav1 of Defamation ~ pol61). It is untenable to h old that a judgment g iven against her as s isted by he l" husband in such a case, is executable against the h u sband 1 s p r operty.

The distinction is further illustrated by sections 79 and 141(3) of the Natal Co de of Native Law. The former provides tha t a vvOi11an suin~ for divorce must "be assisted 11

in the ac tion by h er father~ protector 7 etco? while the latter requires the person cornmi tting the delict to be sued 11 jointly 11

with his father? c,uardian or kra.al-head~ as the case may be.

If it was intended to j oin the husband in this action

~he should have been s ued in his capacity as husband and q,uardian of the v~ife. ~Jhether this Yvas the intention or. n~t ll J.t is not for thJ.s Cour t to s ay, Ue must accept the posJ.tJ.on as we find it o Tne jud.g1nent v1as given against the wife duly assisted by her husbru1d and the husband cannot be made personally liable on the judgment .

:W.lJL.t.tiTZBlJRG. 29th April , 1S35 o Before F .H. Brovv-nlee ~ President? B.iJ. ~:Iartin 7 H.G.,! . Arbut l1not 7 Members Native Appeal Court (Na tal and Transvaal Provinces)o

Lobolo ...... .

- 17 ~

Lobolo - LeGality of pa~nent to Exempted Native .

. An appeal from the Court of Native Comrnissioner~ New Hanover.

AN AGREEMEl':T TO PAY :JOJRY TO AN EXEMPTED NATIV:S 7 IS ENFO.~.~CEABLE NOT·.fiTI-I~3T.t\NDING TE:S F/• .. CT TRL\T THE PROMISOR ENTERS I NTO A CIVIL i:J\RRIAGE ,·ITH TH~ DAUGHTER OF THE EX:SlVIPT~D lJATIV~ .

MucJ.e sued I·,Iaj oz i in the Court of the Native Conunissioner 7 Ne•, ' 1-:ru1over~ for the delivery of ten head of cattle or their value beins t he lobolo agreed upon and due to Plaintiff by Deiend.(.mt in re spect of the marri8.3'e of his (Plaintiff 1 s) dau.s;hter r.flabe1 Clementina to Defendant,

The Defendant p leadeD that he vras not indebted.

Tne Native Comuissioner entered judgment for Plaintiff for ten head of cattle or their value £50 9 less two head. 7 or their value £10 9 paid on a ccount 7 together vlith costs .

Defendant has l od.[;ed an appeal vr ith this Court against the v1hole of the Native Comrnissioner' s jud.c;ment on the s rounds t hat.-

(a) The Court Yrron8'1Y held that Respondent 9 being an exenr1Jte cJ. Native 7 'Jas entitled to receive lobolo for his daughter ? L~abel Clementina.

(b) Even if Appellant promised to pay lobolo 7 such promi se is unenforceable 7 being illezalo

(c) The judgment rras against the wei[Sht of evidence.

It appears 7 from the record 7 that Respondentjs daughter 7 1Aabe1 9 Yvas YJar'r i ed to Appellant in accordance vrith Christian rites? that~ in t he declaration antecedant to the marriage 7 it v1as stated that ten head of cattle and a ngqutu beast had been paid. as lobolo? that the cattle had been pointed out but net a.ctuall~r l12nded over to Respondent? and that ResponG.ent i s e: ~eDpted from the operation of Native law "

Counsel f or Appellant (Defendant i.11. the Court belovr)) rnaintained that inasmuch as Hespondent (Plaintiff in the Court below) i'Ias a Na tive ezempted from the operation of Native law) he could not succeed in a claim for lobolo 7 and "even Defendant 1 s prmaise to pay doe s not alter the position . 11

It is clear that there ~Has an agreement on the part of Appellant to pa~r lobolo in respect of the marriage and that the lobolo cattle i.·rere actuall y p ointed out 7 but that, owinrr to veterinary restrictions in reg ard to the removal of c a ttle 9 the aniraals vrere not actually handed over .

The l'Tative Administration Act (No. 38 of 1927)? section ll(l) 1 specificall y l ays dovvn that the custom of lobolo is not repu~{nant to nor opposed to principles of public policy or natur al justice, It follows 7 therefore~ that an agreement to pay do·,rry in resr)ect of marria.se~ contracted by Natives in accordance vri th Christian rites is not repugnant to public policy or mora ls.

In o , • o Q o

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In the op l n l on of t~1ts Court pa yment of lobolo was a0reed upon by t he parti es and ~ notwithstanding the facts that Respon den t i s an exempted Native and that the marriage was c ontrac t ed i n a c cordanc e \'lith civil law 7 the a greement is enfor c eable in t h e Court of the Native Commissioner (see case of Florence Mdhl a lose vs. l~ enja.i.nin Mabaso 7 1931 N .A cC. ( T. &N. )) .

The j u d[;ment of the Hative Comn1issioner is confirmed a n d the app e a l i s dismissed wi tl1 co s ts.·

Q!~.~~~J'I9_._ __ =!-_Q 0

Q~)J.~_J'I~JMAIJP~. _V..S._·~- .~viV~lAE PJ'I1'§.;1_ DHLATii~K~ .

MARI TZBURG. 30th Apri l 7 1935. Before F .I-I. Brownlee 1 President 1 B . \1r . Nartin 7 H.G . ;. Ar buthnot 7 Members Native Appeal Court (Na.tal and Transvaal Provinces).

Lobolo - A~reement made in East Griqualand for number in ex c es s of ten head of cattle - Enforceable in Natal.

~W appeal from the Cour t of Native Commissioner 7 Bulwer.

A CONTRACT 11PROPT=:R l':UPTIAS 11 TO PAY DOURY IS A SEPA?..!~TZ CONTRACT TO TE~ ON:0J OF rJI.AHRIAGE .UID IS ENFORCEABLE IN NATAL ALTHCUGH Ei1.DZ If.T E/i.ST GRI~UALAND.

In this c ase vrhich comes from the Court of the Native Commissioner 7 Bu.lvve r~ t he Pl a intiff sued the Defendant for thirteen hea d of c attle or their value £58.10.0 being balance of lobolo c a ttle due t o Plaintiff by Defendant in respect of the marri aL e of Pl a i n tiff 's sister Nomakafula to Defendant.

(The Pla intiff is a. res ident of East Griqualand (Cape). Defendant i s a r e s ident in the Province of Natal) .

A plea of "not i ndeb ted" ''l!aS entered.

The Na tiv e Commissi on er eave judgment "for Plaintif f as cla i.l11ed rv-- i t h costs o Judesment of Chief 1 s Deputy Mpen@va.n a conf irme d . 11

Agains t t h i s jud~)!Jent appea l has been noted on the grounds ~~

l . ( 1) Th a t t h e eviclenc e adduc e el at tJ1e trial proved tha t the at{reement to pay lobolo was effected in t he District of Polela (Na tal) a.nd not in Eas t Griqualru1d (Cap e).

( 2 ) That even i f the find i ng of the Native Comruission e r on this point i s correct 1 such a greement is i l l e,?,'a l and unenforceable h avinz reg ard to the prov i s ions of sections 177 7 178 1 179 7 180 sn d 132 of the Natal Code of Native Law (1C91)J i n that Pla intiff seeks to recove r cattle i n exce ss of the number limited by the

Natal •. o o o.

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Natal Native Code.

2 . The Appellant contends tha t the law to be applied is the la~,·" in f m:--c e in the Defendant 1 s domicile.

From t he record i t i s clear that tl1e late Fiyasizvre of vi.hon.1 t he Hespondent is the heir wa s domiciled i n Eas t Griqu a.l anc1 1 Cape Pr ovi nce 7 that the neg otiations f or the marri age of 11esponci.ent' s s i s ter Nomakafula took p l a ce o.t the kraal of the late Fiyasizwe~ that in the marriase s ettlemen ts i t vro.s a[;reed tJ1at lobolo should be paid in respect of t he marriage of A9pellcuJ.t to Nomaks.fula, and that the e.cl"'eement took ]?lac e i n T~J.s t GriqualaJ1.cl.

From t he certific0.te of marria.s e it appears that e i.~_,ht head of c2.t tle were p c:. id a.s 1obolo and that twelve . catt l e anc. a n~_:-""utu be2.s t ( t~1:lrte en head) rema ined. to be paicl .

Some attempt has been mad.e to show tha t the marriage re&;ist.er wc:.s incorrect 2J1d. that :i.ppellant was not party to it but on the fact~) before it this Court sees no rea son to believ e tha t the entries in the reg ister were out of order. It conc ludes that the e11tries vrere i n accordance vri th the ar~r e ement arrived a t in East Gr i qua land by Appellant 'iJith the father of the bri de.

This Court finds that there '~-"IB.s an a,greement on ti1e par t of the Appell.?-.n t to pay t;\"J"enty head of cattle and the ngqutu beast in re.s~9ect of h i e :marria..c: e to :t1esyondent 1 s s i s te r , t hat a[S'reement ',·r s .s.rr ived at in the Cape Province anc1 notwi t hs tcnd:iJ13· the fac t that the narriage s ubsequently tool~ p l a c e and vras regis t ered i n natal, tJ.1e contract 12£9J?..~~~~ !lU.H_t._~§..?.. t.o pay d. ovvry - a separate contract to the one of mal ... riag e - i s enforceable in Natal. The ag reement to pay dovvry up to the numb 8r stat ed i s a legal contract in the Ca~) e Provinc e en d it i s n ot E.d:.ultified by the laws operative in Natal vvhich l imit the numbe r of c a ttle that may be paid, the lavrs of Na t a l obv i ous l y be in,:s intended to ayply to r esidents of Na tal "

In comin~~ to t h ese conclusions the Court has in t h e main been 3·uided by the di c tum in the case of Baliso and l··Teleni Thomson vs . r:,;ipaj i ~~e J:~.a, 1930 2 N . A. C. (C. & 0 . ) in "t1hich it was l a i d down "that where the law of the Pl a intiff 1 s domicile di ffer·;:; from that of th-e Defendant t.l1ere is nothing to prevent the parties from entering into an a2;r eement to pc:.y the dov1ry f ixed by th e custom obtaining in the Plaintif f's ) lace of abod.e. 11

The judgment of the Native Co1~u~1is sioner is confirmed and the appeal i s dismi s sed Y:r i th co s ts o

I·iiAli iTZBURG. 30th April 7 103.5 . Before F. H. Brov.nlee 1 Pre s ident 1

B .-d . I·,·Iartin 7 H . G. ,-·~ Arbut hnot, I.:embers Native App eal Court (Natal and Transvaal Pr ovinc es).

Appeal. o •• •

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App eal from Chief ' s Court o

_1\n appeal from the Court of Native Conm1issioner 1

\ni:6RE AN ~TENSIOn OF TIME, \/IT".HIN HHICH AN APPEAL FROI:I :'\ CHIEF',;) JUDGHENT LTAY B~ PROSECUTSD 1 IS GRANTZD BY A NATI VE Cor,JiviiS . .:>ION~.i;R " SUCH FACT SHOULD BE RECORDEDo

Thi s cas e c omes from the Court of the Native Commissioner 1 Nongomao

It Has first heard before the Chief Bhokwe, was heard on appeal before the Na.tive CoErrnissioner and it nov1 comes before this Court Q

The main [;round of appeal is "that the vYhole of the proceedin~;s in the Native Corr!l11i ssionei' ' s Court were void. ab orit;,· ine ovrin:; to Rule No o 5 of the Regulations for Chiefs 1 Civil Courts not having b een complied with, 11

The Chief g ave judg1nent in the matter on 30th Januai" ~;-, 1934 ; an appeal a~~ainst that judgment vras noted on 3Ctl1 July 1 1S34o In his reasons for judg111ent the Native Cor:rrni ss i oner s t 2.tes an ex:tens lon cfi 'G'iillevrr t liin \'Thlci1 to al)p eal was grantecfoy hJJ11 1 out apaJ.'"'t from t li:Ls sta tement there is no thin::; -·hat ;:;; oever on the recorr:l to show that an applic a tion f or extension of time was made or grru1tedo

It is true there i ,s a statement by the Re s pondent tha t l1e c~elayed. loc.~;in~-llT~al to the 1\f~t-i-ve- qprn!ni-s~sioner o~1ln:_ to- illne ss bu.t t his does no t constitute an applica tion for a.n extension of timeo

Applications of this nature an.d ruli112,s t~1ereon should obviously form purt of the written r ecordo It is not a sufficient complianc e \"I i th the rule for a Ne.tive Conrrnis ­sioner informally to grru1t •:.rit hout record an extension of time v1i thin l:.rhich to appeal fr om the j ud.6ment of a Na.ti ve Chiefo

The appeal is a llmred \V ith c os t s o The jud,~~~ment of / t he Native Commissioner i s set as i de ancl is altered to 11 j ud;;111ent f or the Defendant with co s ts o ir

L:ARITZBURG~ 24th July 1 1935 1 before Fo i-L BroHnlee 1 President , B o.J . ~.!artin 1 CoAo J1;Iack 1 Member s Native Appeal Court (Natal and Transvaal ?rovinces c

Nat ive Cus tom - n:sndisaY or 11ubululY.a 1r custom - Free Gift -· :3ection 14 2 Natal Hative Coc~e 1 l GSl:

An a~Jl)e al from the Court of Ha.tive Commi s sioner J

Lac1ysL1itho

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~mERE A BEAST l,Jf\.S VARIOUSLY REFEfui.ED TO AS i'UMArviBO" OR "UMOBO" BE.AST THE COURT ASSID.ffiD TI-~\.T TRESS T:SRIIS CORRES­POND .JITH "END I SA" BEAST IN N:\.TAL MID 11 UBULUI·TG~'\. 11 IN THE 'r RA.NSKEI .

Plaintiff, Kleintjie Ntamane~ claimed from the Defendant, Mshayeli Nkosi 7 in the Court of the Assistant Native Conm1issioner, La dysmi th 7 the return of a certain COI·v with its pro~eny of t hree or t h eir value 7 £ll.lO o0•

Plaintiff alleg ed in his SUI!unons that he vr2.s the eldest· son and heir in the ~reat house of the late lli~qwlio Ntarnar1e 7 tha t h is father ha d lent Defendant a con v·ri th its calf 7 the cow and calf "beinG stock belonging to and ex his grea t h ou s e'', that the covr h o..d since had four progeny, one of which was killed.

Defendant pleaded ''not indebted."

The Ass istant Native Commis s ioner delivered judg1nent 1'in favour of De f endant 'vi th costs."

Agains t this judgment the Plaintiff has appealed on the ~rounds that :-

(a) The judgn1ent rras aLainst t!1e weight of evidence and the probabilities.

(b) 111e Fative Commissioner erred in his jud.,2r11ent in tha t 11 even if the Defendant's contention that the orig inal b east 1

. ras c_=:J_ beas t g_:l-y:_e_l} to him a11d/or his wife to enable her to "drink milk" at her husband's kraal be correct (vrhich is denied) 7 then under Native Lavr and Custom7 the beast nevertheless remains the property of the Plaintiff's late father and the ?laintif f i s entitled to the said beast and its progeny. it

The orig inal cm'r 7 the subject of this action, is variously referred to in evidence as tJ1e iiUmaboi' or' "Umobo 11

beast 7 terms rrhich it is assumed correspond 'Hi th i'Endisa" generally used in Natal and referred to in the Transkeian Native Territories as ''Ubulunga o"

The custom of ttendisa" or 11 ubulunga 11 varies with different tribes, but the essentials are the same.

Plaintif f (AppellaJ.t) contended that the original cm1 was lent to Defendai1t' s (Hespondent' s) vrife and not given as an •uine.b·o, beast, and so sought to prove that something unusual in Native custoE1 had occurred.

A beast kno'Hn a s '.11J1Julun.=,a '' is one P.l:?_?~e_J1:te_q to the vvife at the time of her ma..rriage 7 it is selected from among the sacred cattle of her p eople:; and represents to her the sniri ts of he1"' a ncestors. Frcm the brush of its tail hairs aJ.e plucked a n c:_ f a shioned into neckla c e s whicn form charms potent to protect the 1 dfe an d her children from evil spells and the pluckinr:.· of the :1.airs is a s yrabol of sacrifice to

0 •

propitiate the spirits. 'I'he husband h e.s no part nor lot ln. this beast and its protective properties do not extend to h1m .

In o o ••• •

- 22 ..

In the opinion of this Court the A)pellant has s ough t to p rove the i mprobable n hich he has failed to do; the p robab ilitie s are s trongly in favour of Hespono.ent whose n itnesse s sta te de f ini t ely tha t the ori.; inal con vras a gift to Respondent's n i f e v·rhich ·vJe b elieve it to have been and this would be in a ccordance \·r i th the custom of 11 endisa"; vide section 142 of the Natal Co d e of Native Law of 1891 ~ih-f"ch was i n forc e a t t he tirae the cause of action arose .

In the c a s e of Nornzrre21 re Ngcobo vs. Chief Mlamula N~cob o J N.H.c. 1S28 7 it was sta ted by Mr. Justice Leslie 7 re f er·rins t o g i f t s of c a ttle to a '~ roman on her marriage~ "This cus tom is s o universally f ollowed that there is a strong presumption i n favour of t h e appellant's case that the cow was a fr e e s i f t, made outrigh t to appellant's mother's hut, and it is f or t h e r espondent to di sprove that presuErption with the c~leare st evi~enc e , this h e si3nally failed to do. 11 This is e~:.:ac tly the p os ition i n t he pres ent case.

The j udgment of t he Hative Commissioner is confirmed and the appeal i s d ismis s e d with costs .

PRETORIA. 9th Sep tember , 1935 . Before B. \1 . Martin, President 7 C. J. Sweeney 7 J . I.:. Brinlc 9 tiembers Native Appeal Court (Natal and Trru1sva al Provinces ) ,

Procedure ~ Exception - Cause of Action.

An appeal from the Court of Native Commissioner 7 \fa lckerstroom.

~F.tlERE ANY OBSCURITY EXISTS I ll THE SUBSTAl~CE OF A SUivll\.IONS~ NATIVZ COI1-TII:1ISSIONERS SHOULD CAUSE THE POSITIOl"'" TC B~ CLARIFI3D BEFOfu GIVING JUDGr· ~l:TT . NATIVE CONIMISSIOHERS SHOULD DISCOUR~GE ? AS FAR AS POSSIBLE~ ~qE PR~CTICE OF _\NS.!i~l1IHG A PLAI1f"l, I l'F' S CLAil\1 BY i .-AY OF :S~CCEPTIOH .

Plainti f f' s cl a im a s s et out on the face of his sm-!n10n8 i s a s follows , viz:-

"The return of 45 head of cattle or payment of their "value £135 and 45 goats or payment of their value 11£22.10.0 and costs c

11 Pa.rticula rs on back hereof o 11

On the reverse side of the sununons the following particulars are shown 7 viz~-

(1) 11All paT'ties to this c ~"Ls e are Na tives of this

District. (2) •• •• • . •

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( 2 ) :'Pla intif f's f a ther v;as Kandeya Shongwe, who died

in 1922 , and Pl a intiff bec arne his heir o

( 3 ) unefendant i s the brother of Kandeya, and nhen

Plainti f f's mother died, De fendant took possession of the ani mals cla i med ; sayin[:; h e would look after them until Pl aintiff ~as a rrajor .

( 4) rr· !hen Plo.intiff bec ame of a.r,e, Defendant repeatedly

put Plaintiff off 7 nhen a d.e.Jand for the return of the animals was made unti l finally he denied liability.u

On t h e back of the s ummons there is also an endorse-· me.nt to the effe ct tha t tl1e summons Has served on Defendant p ers onally by Plaint i f f \'lho c ertif i e s to having explained the SWim1on s to h i rn.

The summons ~ .. J2.S p r epared by Plaintiff 1 s Attorney.

To thi s s uinrnons written exception was taken in the following terms ; -·

"-~-e_~_e_f!_Cl<-~~}_ 1 _s __ .. ~~G..~ p_ti_qn_ -~-o .. _P):.~t£ ~-~:(f ~-~ fi_tg:i[f!__0J!§. 0

"The Defenda nt exc e-o t s to Plaintiff's sununons and . say s that it i s ba cJ. in l a,!/ an d discloses no cause of a ction inasmuch a s ;

11 (a) The claim in the swamons is based on the alleged inheritance f r om a dece::csed native named K2.11deya Shongrre whereas there i s no a l l egation in the sw·nmons that Plaintiff sues in his capacity a s Executor in the Estate of the late Ko.nc~eya Sho~~He by virtue of Letters of Administration issued to lliEl by t h e I~as ter of the Supreme Court or any other cornpetent autl1ori ty, noi' does the SUIJ.uons allese that t h e s aid late K211deya Sh onf}·ve vvas a native married according to lJative laYr and c us tolil an d that Plaintiff according to Native la·:r and custom is t he let:;al and recognised heir to tbe said decea sed sn d sue s on behalf of the said Estate and in his capacity as the lec;al and recognised heir to the esta te of the said late Kandeya Shongvre o

11 (b) There is no allegation in the summons that the cattle and goats claimed by the Pla intiff ever did belons· to Plaintiff 1 s late fc.ther, t~1e s aid Kandeya Shongvre 7 or that they were at any tiue in the possession of the said deceased, or that -'C:he Defendant at any time took delivery thereof from the said deceased or tha.t the said stock ·were at any time in the :?o s session o:f the P1a.intiff himself

"Wherefore the ::)efendant prays that the Plaintiff's claim and su~m1ons may be dismj_s s ed with costs o

11

In addition to thes e exceptions a ·written plea and a counterclaim ',·rere filed, vrhich, for the purposes of this case, need not be discussed nmi o

Inciclentally, it may be n1entioned that neither the exceptions nor the ) l ee. and counterclaim bear any date and

ito oooo

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it is p:""~ .sumed that they 1Nere only filed on the return date of tl1e c -:.~ e.

Durin,s the hearing· of argwnent on the exceptions Plaintif f's Attorney applied f or leave to amend hi s summons by ac~.cling to the particulai'S a li'eady supplied the folloving clauses? viz~ -·

(l) "Th at ·w~e esta te wa s not reported to the JfJ.aster

and tha t Plaintiff is suins; as heir.

( 2 ) ''The c a ttle i,OJere taken away by Defendant from the

possession of Ka11deya' s Yr iclow and that Defendant took delivery thereof."

The application for amendment was not opposed by Defendant 1 s Attorney e;·nd the additions v.re re alloYred.

After a r ,sument 7 and 7 ac cor-ding to the Native CoiTUnissioner ' s rea sons? rvhile he v.ras delivering his judgr.aent on the e::-:ceptions '> Plain·::.iff ' s Attorney applied for leave to mal<:e a further amendment of the particulars of summons by addin~ a clause to thG ef fect that Pl2.intiff 1 s parents had contracted a customax·y union. This application was disallow·ed and the Defenc.a11t 1 s exceptions v,rere upheld ,,ri th costs and sun:u:nons d ismissed .

In seeking to support the Native Comrnissioner 1 s f i nding, Defendant ' s Attorney relied mainly on the omission from the SW!1r.10i.1S of specific p articulars reg arding the na.ture of the u11.ion bet1·Ieen the parents of Plaintiff 7 ancl argued that by reason of such omi ss ion it \Jas not possible for his client to know in i.V!w.t capaci t y Plaintiff claimed? i . e.; whether he clam1ed as heir to parents united in a custon~ry w1ion~ or by virtue of some te s tamenta r y di sposition or at Common Law.

The Cou:;.."t is not able to uDh old this contention. It is true that the l-' l 2.intiff 1 s claim is not as clearly set out as it mi ght have been) but it is our opinion that the particulars g iven i n tl1e orig inal summons were? in tJ.1emselves, sufficient to indicate to the Defendant 1,1hat case he had to meet 7 particula.rly as the parties are related to each other, and Defendant E1ust have knovrn the Plaintiff's status in regard t o this claim. That such 'vras the case is evidenced by the fact that simultaneously with the filing of the exceptions the Defendant 1

.. oras able to file a ·:rri t ten plea to the sunnnons and a countercla i m.

In any c 2.se i f a...'1y furthe r obscurity had existed as regards t he standin,~ of the Plaintiff it vras the duty of the Native Co1!1missioner to have caused the position to be clarified before he · ave his J.ecisionc

Such action 1rou1d not have resulted in prejudice to anyone ano. the proce dure i}Oul d have been in ac cordance with the spirit a.nd i:ntention of . .-1-ct .. 38 of 1927 v1hich 7 undoubtedly, conter.ap lated t h e s iraylification? as far as possible 7 of the proceedin,:_::s in the Courts of Fative Conm1issioners~ the avoiG.ance of the legal nicetie s an C. technicalities that obtain in other more highly specialised Courts 7 and the lessening of the expense of liti3at ionc

Itooooo

.. 25 -

It is true that the practice of answering a Plaintiff' E claim by vray of exception has been adopted in the lower Courts J in the past and that such proc edure has been accepted by the · Native Appeal Courts ,,,r i thout comment in several cases that have come before them.

This tendency to depa.rt from the simple procedure alluded to above i s regrettable and in the opinion of this Court it should be discouraged as far as possible by Native Commissioners. The mere omiss ion from the rules of Native Cornraiss i oner ' s Courts of any provision for the taking of exceptions and objections in Native Courts is sufficient indication, by itself, of t he intention of the legislators in that re§;ard.

Native Commis sioners should, therefore, endeavour to ensure tJ1at tl1e trial of ca.ses b etvve en Natives shall be

1 conduct~d in their Courts in as simple a manner as possible 7 ~. care bem.::, taken to avoid and eliminate the com~)licated forms i of iJlec:ding in voctue in ~ .~a.s i s tro.te' s Courts. -

The appeal is upheld ",.r i th costs and the judgment of the Native Commissioner e.ltered to read: "Exception dismissed \vi th costs o

11

~~~-JlQ_!_ ~1 Q

!2Al'iQijJfE _v3 • . _k~\~ .. SEM .. T~l-~ •

PRETO:;:(IA.o 9th September, 1S35 . Before B.~J o r.Jartin 7 President 7 C.J. Svveeney 7 J .11. Brink, tiernbers Native Appeal Court ( Tra.Jlsvaal and Natal Provinces).

Bapedi Tribe - 11Eafisha 11 custom ~ Herding fees - Review.

An appeal from the Court of Assistant Native Comnissioner 7 Bochem.

UNDER T.dE " ~.I.A.FISH.A 11 CUS'rOM OF THE BAPEDI TRIBE THS 0\lNSR 0? C~\TTLE IS LI/illLE F OR !JIPPING AL'ID GR'~ZING ~{PENSES, BUT riOT FOR H3RDING FE~S .

This i s an appeal against the judgment of the Assistant Native Commissioner a t Bochem in vJhose Court Appellant claimed from Respondent fifty head of cattle or their value £250 7 allegin.s t hat many years ago she had. lent £50 to Respondent's :father in return for which the latter had pointed out seven head of cattle vrhich he undertook to retain and look after free of charge; that subsequently Respondent's :father died and that Hesp ondent becrune his heir and thus liable to the Appellant for the delivery of the cattle in question "~Hi th increase or t he ir value·

Respondent in r ep l y to U1e claim a&nitted that he inherited his father's estate' he admitted also the transac­tion betHeen his f c:.ther &"'ld Sentumulo 7 the husband of Appellant 7 but alleged that he had a l ready returned 13 cattle and denied

thatooooo

- 26 -

that he vras liable f or any more. He counterclaimed a gainst the sa i d SentWi1ulo in the swn of £220 being for grazing 7 herding and dipping ex~)enses incurred in connection vri th the cattle vrhi le under hi s care.

The Appellant repudiated the counterclaim alleging that the sun1 of £8 had been pai d for dipping fees.

It trans~ires from the evidence that the dispute between the parties \'Tas not correctly set out in the pleadin~~· s and that actuall y Appellant claimed from the i~spondent onlyo 7 head of eat tle for 6 of vrhich the latter adrni tted liability.

The Native Commiss ioner gave judgment for Plaintiff­in-convention (Appellant) for 6 head or their value £30 7 mrucing· no order as to costs 7 N1d for Plaintiff-in-reconvention (He spondent) f or £47 . 7o 6 and lilcev~rise made no order as to costs .

Acainst this decision an appeal has been noted in the follov1ing t er111s 7 viz; "Be p l eased to take notice that the Plaintiff hereby n otes an appeal to the Native Appeal Court a 2;ainst the jud~:ment as a \::hole of t h is Court in the matter delivered a t Boc~1em on the 11th J anuary 9 1935 o 11

No e row1dS of appeal have been furnished~ ~le Appellru1t purporting to act in terrns of Rule lO(b) of the Native Appeal Court Rule s . As pointed out by this Court in the case of Gabriel 1'Tkol!1ane vsc Joel Moeketsi 1930 n.A.C. (N. & T.) and Blaine 7 99 9 it i s desirable that a practitioner lodging an appeal on beha lf of an Appellant who was not represented in the lovrer Court should state the grounds of appeal clearly and specifically and not rely on t11e proviso of Rule lO(b) o

In this Court is vias intimated that the appeal is not in fact against the v1hol e j ud_;ment but ar;;ainst the decision on the counterclaim only 1 the ground being that it was bad in law in that the evio.ence establishes that Respond­ent held the c a ttle under the custom of 11l:Iafisha" in terms of vrhich, it is contended 7 herding fees are not claimable.

The l.ia.fi sha custom i s one \V hereby the person with whom the cattle are placed 111ay use them but he has no claim to any of the increa.s e and he Emst in due course account to the ov1ner for aJ_l cattle 11fi shaed 11 together vui tJ.1 the progeny. The ownex· of the ca ttle 11 f ish a ed.r (according to Harries 7 p ol32) 7 is liable for dipp ing 2 •. nd other expenses!~ but not for her8. inG fee s .

In the present c a se it is true that the Hespondent in his countercl a.im dema11c•.S c::raL-,in~· , dippin.s· !?.:Qc;l ll.~r_cl~l~g fees but it is clear from his evic~ence tl1at he claims only grazing and dipping fees 211d that the aJnount auarded to him is in respect of these e:::~J en s es and. gg:t:~ __ fp_~ J1.~s_c1j._n.g__£~~~~ · Assumino· therefore tha t the evidence does establis:i1 that the cattle ~ere held under the nr,Iafisha.n custom the Res:9ondent Ylould still be entitle d to .:zr c:~zin:; a nd di.i.Jpinc; fees o As he was awarded these expenses) and not h erding fees, the appeal therefore on t h is ground c annot b e sustained.

This conclusion7 hov1ever 7 does not entirely dispose of the matter in view of the irregularities disclosed in the proceeding sQ

The. o " o o ,. "

.. i

- 27 -

The Plaintiff (Appell ant) is a married w·oman ·v·rhose husband is alive but the action is brought in her ovrn name unassisted 7 on a c ontrc:.ct which is found to subsist not betvreen herself and tl1e Respondent but bet'Ieen the latter and her husbandc

Furtherrnore 7 the c ou..r1terc laim in the matter is directed against the AJ}pellant ' s husband who 7 however, is not joined as a party to the action j_n any ,-Jay 7 but merely appears as a \·.r itness for the A..?~:; ellant .

Althouf-·:h these defects involve fundamental principles of l m1 and proc edur·e they stand uncorrected in the lm:rer Court 2.nd have not been r <lised on apyeal.

Clee.rl y 7 hm·vever 7 they are of such a vi tal character as to nullify the entire proceedings.

The effect of t.'f-le judgment is that a married woman vv-ho has no cap 9..c i ty to sue has obtained a judgment in her f2.vour f or property which she cannot hold in her own name vrhile a jud~ment ha s been E;; iven against her on a counterclaim to v'lhich she -.. ras not 7 and could not be 7 a party 7 and which in law is therefore unenforceable.

In vieH of tl1ese irregulari ties 7 this Court has come to the conclusion that the judgr.flent in the lovv-er Court rras be.d -~p __ o~r.i_J_~,n_e_ anc: He find it nee essary to exercise tJ."le pmrers conceiTed on us by Section 15 of the Native Adminis­tration Ac t. In terras of that Section this Court has the pm1er 7 _i_.I}_i~_I' __ a)_t~, to review 7 se t aside 7 amend or correct any orde r 1 judgment or proceeding of a Native Cornmissioner 1 s Court provided that no jud[;ment or proceeding shall 7 by reason of any ii·re3ularity or defec t in the record or proceedings be rever sed or set aside unless it appears to the Court of Apre al that substantial prejuc!.ice has resulted therefrom.

As this Court feels that substantial prejudice Nill result by quashing the proceedings entirely 7 having regard to the fact tl1at but for the irregularities mentioned the Native Commiss ioner 1 s j uc:.gmen t on the facts and in law is other'1Jise correct 7 the juci.[;;r11ent is set aside and the proceeding s are returned to the Native Commissioner, permission being grru1ted to the husband of the Appellru1t, tc apply 7 if he so desires, to be substituted on the record as plaintiff~in-­convention and defendant- i n.--reconvention7 thereafter the Native Corm1issioner to pronounce a fresh jud6mento

No order as to co s ts of appeal,

· .. ~ ~~'! -irJ L~G r· ..

, ;,/ _h 1 • i'v QAf:i.E;. JIQ ·. )§. •

~ rv;; 11 { 19

:1 ~ AJ.:lo<);L _ _!i~\,;L-~J"Y,.fl._ .\'.~ . _ TJ:!.OJJNL!¥\.'.Il!Ji, · "' N i) .l)

r(v t [~PRETORIA~ lOth September 7 1 935. Before B.\ i. J.~artin 7 President, CoJ. Sv·reeney 7 J.l\1. Brink7 Liembers Native Appeal Court 7 (Transvaal and Natal Provinces) .

Interpleader - Property att2.ched in .Possession of claimant -­onus.

An.GCOG O OC.

- 28 -

An appeal from the Court of Native Comrnissioner 9 Nylstroom .

IN .f.\N IlfC :::;~pL-~AD2~ :\CTIO~: TH~ OI,nJS OJ:-1 BURDEN OI' PROOF IS OIJ TI-L~ CLAII '0UTT.

In this matter the Appell2.J1t claimed certain four head of CE, ttle vrhich lw.d been a tta che d by the IIessenger of the Court in e ~=ecution of a jud.~_ment of the Native Commiss i oner 1 s Court in favour of the :rtes._Jon0.ent.

The Hespondent resisted the clain1 and the Native COl~llaissioner after h~arin~ evidence diSE1issed the A•JDellant 1 s claim anci. declared the c attle to be executable 1 \Tith-" costs.

;\n appeal hc.s been noted a~~ainst this jud3,nent on the follow in.::, .r;rouncLs;-

"l o The .. t the jud.~nent is a~~e.inst t:1e vrei~iht of evidence) 2nc"'.

11 2o Th--~.t t~1e jucG,ne :t~t i s ba0. in lm1 in tlw.t the Native CO!l1i"i1issioner 2l"'I'oneous1y helo. ti.1o.t the onus rested on the claiE12J1t ~.rhei"e2.S f~uch onus :c·e.:;ted on the jud~111ent credit.or o n '--

It app ears from the recol"'d th,~t the ~~. ue stion uDon 1·Jl10>l the onus rest ed. \Jas l ... aised a t the outse t 8nd. that the Court a fter ar[.ument ruleO. th2~t the A.:_J;_)ella.nt s).1ould conFnenc e,

.0 ... t this stL~ . .:;e it F ill be c onvenient to deal wj_th the second ground of s)peal bee 3.use i f the l'Tative CmTu11is­sioner1s contention that the onu s rested on the Cla i meJ1t is correct 9 then it must be d.etennined ~ ·Il1et]·1er or not t~1e

evio.ence 2.dd11c ed. by him :J.1a.s dischc.rt;ec.--;, t~1a t onus c

It is ::;ettled 18:,;· that in int erDleader ac tions t h e ~ ~ .. eneral rule is that t~-:.e burc-;.en of proof ls on the Cla imant o

It i s f or ~1iu to )rove t~.c.~.t he is the O"~rner of t he prolJert~,., *

T~1e onus ~~a~1 9 hoi.'Jev8r, be affected b~r sv.rr oundin~; circw11-stanc es e.s the follor.r in; c as es i;·rill shur ~--

In J~.1::9PlQ.~ .. -.Y.s_. _ ~;[~~ s_-?.Q]) .J_~}5~ 2_7 --~T-o _I-:~1J-o_ ).QC_Q_ the /1 property 'rz:.s attached in the p os session of the Claimant and the Court h eld tha t ~Jo sses sion raisec;_ a prcsu.:.11ption of ovrnership a.r1c.1 tha t t he onus ':a s on t~:1e ~z ecntion Creditor to ~Jrove t~1c.t Cla ir:.1a.nt 1-ras not t:1e o· rner o

I n Y..9B_~q~_l~~ L.e.l:~-~2- .V.~~-~-.Q~-~1:~s_cl?dl_l_1_)-.?JJ'.. _'l:~o_:e~J o the Court rrent further 2.110. ~1elc. that uhere uncler a 'Jrit of t' execution a..'1 att.J.cim1ent i.s l ;_· id on p~: oper ty in the possession :~ · of th e debtor -, .rhicll hc:~G. manifestly recently belon.'_) 8d to 9. \ thi:cd. ) ers on the o:1us is on the Jud[:,ment CTeditor t o prove 11 that the prop erty belon~_ ~d to the cle~)tor 0

It c.roulc;_ ::~ppec.r, therefore 1 tha t this vexed que,s-- \' tion of onus in inter ·Jl e2:.c1Gl"' actions must nec ei~sa.rily de:_Jenl1 1\

on thG circWJ.1St?..nc e8 of eac :i.1 ca.s e o

In the action n ow before this Court it is c onli:10n c ause that t he c attle e.t th2 time of the issue of tJ:1e Sl.1_u·,wn:~.

i11' 0 • 0 ••

- 29 -

in the orig inal case \:ere in the poss e .ssion of' the Judgraent Debtor an d tha t at s ome later date they were removed to the Claimant ' s kraal. It i s also common caus e that the cattle had been in the possess ion of t h e Jud3,111ent Debtor :for some years prior to t h e i s sue of the summons .

It must be n oted that in Van der Mer'\:re 1 s case it was held that the onus ~.:as on t h e Judgrnent Creditor notv1i th­standin[;' the a ccep ted ge:-.1eral rule or t h e f act that the catt e \!ere atte:.ched in the )OBsession of the JudgrJent Debtor. Therefore conversely it 1 1us t fol low tha t .;a fortiori 11 will t he onus be on the ClaiE1C:U1t in a ce or dance ''Ii th the g eneral ru l e i f it be proved t~v:·. t c a ttle althou8'h a ttached in the p o.sse Gsion of tl1e Clai~·l18..:.'1t '.re r·e shortly b e f ore attachment in the posse s sion o:f the Jud3rt1ent Deb t or.

T2.~d.nz all the circumst anc es into consideration , this Court c ort1es to the conclus i on that the Native Comrniss ioner ri3·htly held that t.l18 onus 'rc.s on the Claimant of provins that the c c::.ttle in di spute '\.!ere j1is property.

Having 2.:C:i.""ive d at this c on c l usion the question r:rhether the ClaiinB.nt he.s c~i.sc~1C.l""r.;ed tl1a t onus r emains to be c1eterminec1. The Native C o1clui sr~ ioner has d iscussed the evid­ence in 'his re2.sons foi" j u·~ ,._~111ent and n o .::;ood gro tmd has been sho~'!n why thi s Conr t shonl c di sagree Hi t h the conclusions he has reached.

He says ~ 11 I~1 arrivins· at t h is conclus ion the Court :1ad. to s i f t the evide21ce ver y carefully and consider the r elationship of the partieso I n the f irst p l ace t he Claimcu1t i s t l1e .son--in-12.\T of the Execut ion Debtor a.nc1 h e admi tG the c a ttle a t t he tin1e o:f a ttachment were at P i e t Siba111bo 1 s kr aal al tl:.ou~~h un c_ei"' his control an c1 uno.er cross­examination stated he l1c.c1 reuoved t h e ca ttle to his kr aal aft er the i ssue of th8 suEm1o~1s in t h e previous c ase and further sta ted 1 Pi et to l d me to t ake a'.Jay my c attle a s Execution Creditor was c omin_s to fetch his cattle 1 o" The Native Commis-s ioner h c.ci tl1e u itne.sses be:;:'o:·e him a nd i s t he best judge of the decree of credib i l i ty to be g i ven t o the evidenc e .

.:-J,ft er due consideru.tion of the ev idenc e and t he probabil ities') thi s Court comes to the conclusion t J.1at t he c lair.1ant h as failed to esta.bli sh his claim.

The appeal i s C. i sn1 i s.s ed ni t h c osts.

l;iARITZBU . .=cG. 25th Cctobe=:-'') 1~35o Before B .'!. Nartin 7 Pj_"es i 0.ent') C .".T. Cre_;,rfo~~c.., J c'T o Boast') Hember s Native Appeal Co'LJ.r t ') (Ha tc:..l a n (l Tre:"'.nsvaal Provinces )

Da;,na.s;es - Pr es nanc y - :Jivorced ~.J oman - Natal Native Code 1932 ·

fill appeal from the Court of Na tive Con1raissioner? l:Ic.'..ri tzburs o

\f.dElli!:: • •• •• ••

- ~c -

WHERE A I IA.RH ISD \/Cii ~l\.i:T OB'I'AI HZD A DIVORCE I N D3CENil3ER ~ A.ND GAVE BIHT~I TO A CHILD I N JUNE OF THE FOLLOWING YEAR7 ALTI-10~GH SHE R:\D LIVED A? A.RT FROL:t H3R HUSBA~fD FOR TvlO TIARS 1 .l.· TI-IE CHILD I S REGARDED AS BELONGING TO THE h1J3BAIJD . Till UOI'...I!.J'J ' 3 FAT1-1ER HAS NO LOCUS ST;UIDI I:N /uT _~'..C TIOIT FOR DAM1..G3S o

This is an appeal from a judgment of the Court of the Native Comnissioner 7 Pie termaritzburg 7 in favour of Respondent a,3'a inst Appellant for one beast or its value 7 £5 7 damag es for pregnancy of Resp ondent's daughter 7 Martha? no order being made as to costs.

It is cominon cause tha t Respondent's daughter, Martha 7 gave birth to e. child on the 20th June~ 1935 7 and that she had obtained a divorce from her husband in December 7 1934 7 after having lived apart from him for tv.ro years. The Native Commissioner ac cepted her statement that Appellant had caused her pregnancy and ~ave judgment as indica ted .

The 6round of appeal '~-ras as follov.rs.-

11 (1) That the ju~·r_1ent -v1as against the weight of evidence , iD that t he Plaintiff in the Court below failed to prove that the Defendant was the father of tl1e child. "

At t h e hearing of t he appeal 7 ?Jir. Brokensha 9 vrho appeared for Appellant? obta ined permission to file the following ft.n·ther grounds of appeal:.-

11 (1) Tha t :rtesp ondent had no locus s tandi to sue.

"(2) Tha t the evidence of Plaintiff's daughter was insufficient to rebut the presumption 'Pater est quem nup tia demonstrant'."

The judgment ap~ ears to have been based on the provisions of Section 137( 2 ) of the 1-Jatal Native Co de of l S32 v.rhich reads as follous ~-

'tAny person having illicit intercourse vJ i th a divorced woman or v:rido'I:J a s a result of uhich a child is born shall be liable in drunages to her father or guGrdiru1 7 such damages not to exceed one beast in respect of each child so borno In the event of a subsequent customary union betYve en the parties 7 any payment of 6an1a.se s shall be r e:::;arc1ed as formin:; part of the lobolo."

In this case , horJever 7 the fa.t h er of the chil d born did not ha:ve illicit intercourse vv i th a divorced iN Oman or vridm-·r as the interc ourse must have taken _p lace about September; 1934 7 vvhen the 1/0l'11<:U1 I!iartha. \ras s till a marri ed woman.

Section 32 (c) of the Code provic.es as f ollows .. -

11A child born of a cli vorc ed ':roman wi thin ten months of her divoJ. ... ce become s a member of the fami l y of such 1:romru1 ' s previous hus ba..l'ld. 11

J This means that the child born t o IIartha on the 20th

June 7

1935 7

r.1ust be regar ded as belong i ng to her husband nnd

- 31 -

it is difficult to understand ho-vr Respondent can maintain an action for dcu1180eS in respect of a child of Fhich he can11ot become guard.ian.

:rvrr o Davis ~ vrho appeared for Respondent~ argued that the cause of action arose, not from the pregnancy of the woman but from the birth of the child as Resp ondent would have to deduct a beast on account of the child from the nwnber of c a ttle othe~~ise claimable by him as lobolo for the woman in the event of her remarria,:;e.

Hespondent states that he paid back four head of cattle to I-.Iartha 1 s l1usb e..11.G. by order of Court. It is not underr~tood v·rhy h e v.ras ordered to r!iake this refw1d. In the last paragralJh of his evidence he distinctly stated that Martha was the Plaintiff in t l1e divorce action. It :must be asswned by this Court that the divorce ;,ras decreed 11by reason of the wrongful acts~ misdeed.s 1 or omissions of her husba.l'1di 1 ~ in "I!Ihi ch c ase) of course 7 no refund of lobolo •.vas obligatory - (yj._d_e_ section 81 of the Code) o If an order for the return of lobolo vras made by a Court of law it was obviously w-rong and an appeal could have been brought a,:;B. inst it ,

For these reasons, this Court corne s to the conclusion that Respo11dent cannot maintain an action f or damages in respect of the pregnancy of his daughter as a result of ,,rhich she gave birth in June, l S35; and that he has no locus standi. The point vvas not raised in tl1e Court belo~ . r but iJe consicl.e:c that there was insufficient evi·:5.ence to justif~r the findin~; of the Native Connnissioner that Appellant vra s reSlJOnsible for the pregnancy of ~~e spond.ent 1 s dau,:;h ter c As u e find? h Oi·rever 7 that Respondent has no locus standi 7 no g ood ~~ ur~J ose would be served by an absolution j ude,1nen t o

The appeal is upheld vri t l1 costs and the judgment of the Native CoEJ.missioner is o.l terecJ. to re2.d; ''For Defendant v·ri th costs.n

.Gf?.J3_~ . _l{_O_ ~ --- _1_7. o

:ZSHeJE . 16th October, l935o Before Bo ;d. Partin, President. C .'.i o Crawford? JoT. Boast) Members Native Appeal Court? (Natal and Traasvaal Pro\rincei3) .

Procedure - Not ing of appeal - Application for extension of time -­"Just cause 11

<

AN. APPLICAN'r~ \i'{HO 'JAS MFESEN·I'ED BY C01.Jl'TSZL IN THE NATIVZ COLI-:IS~IO!ITJ:R 1 S COL1tT 9 ~ TUST SHO\J "JUST CAUSE" BEFOID: AN ~T31TSICIT or TI:l 3 . f iTHil~ ·.rHIC::-: TO FOTZ i\J'T APPEAL 'vVILL BE GRANTED o

This is an application f or a11 ex tension of time within \Ihich to a :Jpeal ac ains t a jucl3ment of the Aso istant Native Cor.m1i ss ioner 7 Eshowe o

T'l1e A;:->·,Jlicailt Ja.z :L Nzele? in his capa city of heii' to h is l a te fEther ... lJquola., sued the Re ,s p oncJ.ent 9 his uncle) in the Court of Fative Ch ief Foqandela f or fifteen.he a d ?f c a ttle . being the lobolo c ~.ttle of l1is aunt Ntombez~ne whlch. he ~lalrned . had bee l1 wrong l y received by R8Sl)Ondent durlng the llfetlrne of h l s (Appellant's) fat~1er.

The o o o o o , o o

- 32 -

The Chief gave jud2,ment in f c..vour of Applicant for the fifteen head of ca ttle claihled .

Resp ondent appealed against that jud31nent and the matter came before the Assistant Native Comrni s sioner a t Eshovre on the 28/1/1935? 20/3/35 1 15/5/35) 23/5/35 1 17/6/35 and 25/7)1S35? when juc"LSraent v.ras reserved c

Both parties vrei'e represented by Counsel during these proc eedincs .

The jucJtment of the Court vras delivered on the 29th July 1S35 l'.Jhen t he Ch ief 1 s jud,srment uas set as i de v1 i th costs.

The l ... ecord does not disc lo se '.rhether or not t h e parties were present or 1.rhether they ·were represented when the judg1~1ent v-ras delivered but Counse l for Respondent (Mr. Kent) has assured us that both he and Applicant 1 s Couns eJ.. (T.-Ir o Rutherford) >Here in attendance.

Application is nm·r made under Section 6 of the Hules of the Fative Appeal Court for an extension of time Tvi t l1:Ln which to note an appeal aga ins t the IJativ·;:) Comni ss i oner 1 s j udgment dated 2Sth July 7 1935? it being urged in support of the appl ica tion that t he failu re to note appeal timeous l y v.Jas due to the delay in securin~ a copy of the r-ecorJ whi ch vras required by t h e attorney (Mr. GabrieJ.) vrho was sub.sequentl~r consulted by Applicant .

It was ascertained during tl1.e argument that the Appli­Cal1.t had become aware of tl1e e_dve rse judgTi1ent against him some tiE'le p rior to the Gth ;\.u~ust? 1935 0

1.rhis would a llovr h:i.Ii1 a t lee.st t welve days iiv i thin vvhich to secure all t he inf ormation necessary to enable hiL1 to lo c:ce hi3 notice of B.j}pec.l within the p eriod prescribed by the rule sc

The ques ti on to be c-:_e c i ded i.s vrhether or not the ground ur,5ec"l is sufficient to ~:,'arrr.-.nt tl1e .;r2_:.1. t i ng of the relief soughto

TI1e question of -.rhat c onstitutes i1jus t caus e :i v.r ithin tJ.1el

meanin.:-·; of Rul e G uas f ully cl.iscu E.> seci in the j u d_grnent of thi s I Court in t?e _ca se Silo 1 ·~c'l1lalo~ e ?"s" lvle:. ~sh\felana Hzuzc;t ,ci.eli~ere d on the lOtn July? 1033 2 vrhere ln T ... G.e orln clples by whlc.:.1 thls Court ·would be [)Ui de d. in matte:-cs of this n e_ture are fully set out.

-.le s ee no re ::tson to depart f rom tho s e pri ncilJles in the present case and bein;,£" of the opinion that the Applica~Yt has f a iled to adduce sufficiently wei.:;l1ty reasons in support of his a.pplica .. t ion1 it must be refused Y'i i th co str.:>.

Gf:i?LN.Q_. ~ J.§ o

~:~JI.l:. .9J_L_I ___ v~j-~. ) ¥U.EI.~:Q _ GI~J. •

].:11\.RITZBU~G . 2.Sth Oc tober 7 1~;·3 5. :Cefore B o .1.l . I~artin ? President )

C .·,r o C:t."'anf o:-cd? c.T oT, :Soact 1 i\Ieuber.s N2.tive A~)peal Court (Natal a...l'ld Transvaal Prov i nces).

Interpleader - Cnus c

An aDDeal fr om t~1e Cour t .. of Native Commissioner? Inanda (at Verul2Jl1) o ~ ...

THE PP..ES'G~ 'lPTIOlT 7 UFTIL TE~S COITTR.!\.RY If3 PRQVj~D 7 IS TAAT o:,i?·TERSHIP OF ALL G \.TTLE ·,~ITHilT A K.R.\AL 7 VSSTS I F THE KR.AAL··I-IEADo TE:S BUn:;}~E OF P:i.OOF R~·:;rrs OF CLAi ll)J"il' 7 AF U}~·::..\iletiED IJ.l :-.AT:~ OF TI-IE Kf\J:,_i\.L o

This i s a n aDneal fr om t l1e j ud,srnent of t he Assistant Native Cou.i·lliss ioner 7 Inailo.a (at 'ifs:-t·v.l0Ji1) i in ru1.

applic a tion . •• "•o

- 33 -

application in uhich the ..Appellant ~1as the juclgment creditor (Plaintiff ) an d the Respondent the Claimant in inter:._Jleader p roc e edin2s ar i s ing out of the case Paul Cili vs. Jim Cili which was heard in the Court of Native Chief Luzulane IJdhlovu and in '. rhich j uc1gment '.:as g iven in favour of A)pellant azainst the Defen d.211t 7 Jim Cili.

In pursuance of such jud~ment the judgment creditor (Appellant) had caused an attaclnnent to be made of certain five head of cattle i n the kra.al of the Defendant 1 cJim CiliJ the father o:C Claimant ( Re sp onG.ent). App lication for the return of four of such cattle ~ r as unsuccessfully made by Claimant to the Hative Chief concerned at'1d an appeal aGainst the c:1ief 1 s decision '·T(JS nade to the Native Cmilmi s sionerJ Verula;n 1 who uphelci.. the app eal and set a.side the attachment of the f our head of cattle ,

It is a'"::ains t the :i.T~ .. tive Conm1iss i on er 1 s jud,s;111ent that e.n ap9eal h a s been brought to this Court. The grounds of appeal are~ --

(1) The jud~i)·nent is e.ga ins t t he · rei[Sht of evidence.

( 2) The .i.1es·oond.ent h o.s fc:dled to discharg e the onus

v hich l ay on ~.1i.EJ. to establish that t he cattle attac~1ed vrere h is propel"'ty and ~1ot tJ.1e Defe~1d<JJ1t 1 s "

On tJ1e c1 uestion of cnus 7 t~1e Native Col"Ilr:1issi oner l1as stated in h i s re J.sons fm .... jud.~n1e ~1t thc.t he i s of the opinion. th<J.t 2.s the c a.ttle ·\·! ere in the pos session of the Clair,1ant at the time of attac:b.ment the anL-,lal s must be presumed to be hi s 9 2. n d that the onus 1.vas? cons e c;_uently) upon the judgment crec!.i tor (or hlJlJellaYJ.t) n

Nov1 it is acJ111itted tha.t the Cla i mant i s the son and heir of his fc:·.t her Jin1 Cili (judc:;;ment debtor) ill1d tha.t he is an irunate of the l at te:t· 1 .s kraal. It is a l so c Oi~lmon cause that the cattle 'Tere attc=:.ched in the kraal of his father (i.e. the jud&)nent debtol~) , The Claimant admitted to this Ccurt that he is as yet unrnarried anci. consequently he must be consic-:.ered to be ar1 in.ln&te of the kr e"al of hi s father and subj ect to the lB.tte r in all matt ers appertainin.=:, to the kraal. It must a lso be preswned 7 until the contrary ~ is proved 7 t:i'1a t the o1.J1 ership in all cattle vri thin the kraa l vests in ~1e kraal hea.d .

That bein2; the position the Native Cor.unissioner 1 ras clearl:" 1 :ron~ in holdin=, tha t the cattle in dispute vrere in the p os session of Claimant a nd by placin~ the onus of p roo f upon t~1e A~)lJ ellant ( j u cl::;ment creditor)<

The onus clearly res t ed on the Claimant to p rove his oHne rshi:J in the c e.ttle in c~uestion a ncl. this Court must decl c1e uhe t her or not t h o.t onu s n as c.ischar8'edc

The evio.enc e of t~1e Clai111ant re[:;e.rdin.:-:; his O'i'rnership over the c a ttle in dispute i s bl~iefly as follo~rs ~ ··

He o.eclares tha t .soue tirne in 1S·26 he .:_J urchc.Ged a certain cou 9 . 1 Ihich he di d no t (~_ escribe by colour 7 from an

I nclian" .....

~· 34 -

I.n.c1iru1 named !-Ioonsam~r IJaiker 7 v1hich c ow bore the red covr 'vhich is one of the animals nm·v in cJ.is 'Jute. In proof of this pu rch2.se he pl~oc:~uc ed a '.rri tten O.ocument purj_J orting to have been s i gned by one RoG. Eaido o on behalf of Lioonsamy N2.il-:er in \rhich it i s st2.tec~ ~.1at he a c quired a cm·r and bull c alf for the sum of £4 on the 16th February? 1 926 7 of which ar:wunt the sum of £1 i~~ stil l due o 'The only other evidence aC:.d.uced in respect of this cow is that of his father Jim Cili (ti1e jud~r.1e nt debtorh1ho 7 ···rhile agreeing tha t a p urchase of cattle '.vas mac.1e 7 stat es that a black cmv and calf and a b lack bull calf Fere purchased . He does not· -n1er1ffon -:rr·o-in·­'·illon1··-_,ih·e . .. ;)urchase vras-made but it must b e a sswned that he refei'S to- the ani111als allegec. to have been purchc:J.s ed from Naikero It should be observed t hD..t nherea.s Jim Cili refers to the p urch2.s e of a c ovr &nd ti•·!O cal ves the docw11ent referi'ed to only makes mention of one co~!T ::;nc1 one c alf o It should also b e noted tJ-1.at the docw-11ent \'lD.S only ob"'C:ained on 7 and is dated~ the 27tll JlUle 7 1935 7 the day before the hearing of the c ase. Strictly speald.n~· that document should n ot have been a&nitted as evidence .

· Thereas the Claii·l~ant declares tha t t.he red con is t he prog eny of the coP j_Jurchased f rom Faiker the Appellant declares tha.t it is the offsprin~ of a.ll.other b e a st the proper~ t y of the judc.,nent (ebt.oi'? vrhich he acquire d a s lobolo from one ::>iDoni C>ome ~~ea.r·s a.s·c o Claima nt Vihile a&~1itting the rec ei::.:>t b~r his f2.ther of t wo head of c a ttle from ;Jimoni di t not 7 :1oHever 7 ex:plain 1.rhat bec ame of the111 . It i ,s therefore quite _:;) oss ible t~1at t hey remai ned in the kraal of the jud:=_111ent debtor <.:.n'_'l that the rec1 cm1 i s the offspring of one of thei.11 a.s alle~ed by Ap~Jellant.

As re~~al .... ds the remaining cattle under att:::.chment 7 the Cla.i1112.nt c:.e s cribes them as l"'ollmrs 7 viz~-

(1) Black cov.r? received in exchan£ e for a black bull from his fe.ther some tir.ne agoc

( 2 ) Black co1r ;;_rith w~1ite spot on le f t side? th e p rog eny of ITo . 1 .

( 3 ) Red bull tole 1ri th '"lhi te spots on left s i de anc1 f orehead 1 the prog eny of No o 2.

( 4) ned co1·r - 1.vhi te Sj_J ots a ll over body 7 the prog eny of Fo . 1.

His fa.ther Jim Cili 7 on the other hand describes the cow vvhich he .r-:·ave in excJ.1ange f or a black bull to the Claim2nt ( i . e , No'-: l) as a black heifer YLt.1h:. _yy_h_i.~e .. _}:Le.J.).Y and star on foreheac"'t.= This discrepancy in the description 0-:f-tli:J:-t a.·nl1Tial ~i-s·~ · -{n the eyes of this Court 7 significant. and raises a doubt in re~.·arc~ to the Claimant 1 s ownership ln l~ . TI1is doubt 7 natur ally 7 obtains in respect of the rerilB.Lli~ 2~limnls H~lich ai·e the ~) X'o ceny of the black covr under d iscuss ion 7 and the Court :.;.as come to the col!clusion tha t the Cla.imcul.t h.s~s failecl to C.ischarce t he onus whlch rested up on J.l.im o

The appeal i s uphel d 1 ri th co sts and the jucJ . .:)"11ent of tl1e Native Cor1m1issioner i s a ltered to read; "The appeal from the Chief 1 s jud3,111ent i s dis~11i ssed 1J i th c o sts and the cattle in di spute are declared to be execut able. 11

CASE , • , o ••• o

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.QA.SE JfO.~- )~

~_m I NQ J;. J ·TI-~L011Q.Q . .V .. '.i ·~ .Jl~~I-I£W,:LJ:4=h. )~~y .

DUillJAN . 21st October 1 lS35. Before B; 1. Hartin, President 7 C. ··. Crm·Iford 7 J .T. ~: oast, Members native Appeal Court, (Natal and Trwsvaal ?rovinces).

Practice - Revievr .

.An application to revien proceedings in the Court of Native Corami ssioner 7 l.ltunz i n i.

ALTHOUG:ti OL1ISSION~~ Al'D) IRRZGULARITI:SS AFFORD 1!:8RY .JT:~orr.:. GROUlTT)S FO:-t A?P~AL 7 AN A?P;~AL COURT IS BOUND BY ITS rt1JL3~:3 lUID CAJTNOT /\.LLOJ A EOD3 OF· PRCC:SDu-=·:r·~ NOT .30 PP~SC=tiBJ:D,

Thi s is an application f or a review of the proceedings in the c as e of L!t,shabuli ~ulu versus .::)iquva alias Zssie T:l1lon:·o ,,rhich '·vas heard in t he Court of the Assistant Hative Coi1U~·J.iss i oner 7 LituJ'lzini 1 on the 22nd May 1 1935.

In that case tl1e Respondent sued his wife 7 v1ho is the dau~hter of Applicant 7 for d ivorce on the grouno.s of adulter y and \.'ilful desertion.

There \Jas no claim in the surar.1ons for J~he return of lobolo cattle nor ';as the Appl icant cited as the guardi8J1 of Defendant for the purposes of the action nor 'Tas l1e joined as a co - c"':.efenda.nt.

:rith the object of g i ving the vJ oma..i"l locus standi in judicio 7 appa:cently 7 the Applicant ~'as subpoena ed to appea r a s a VJ i tne ss at the trial" ancJ. 7 althou:::=-)1 t l1e Native Cmn;ni s sioner: s record. doe s not d isclose that fact, it is admitted that he WB.S present in the Court dur·in~ the trial c

l;.lJPlicant took no p art in the ~Jroc eedin.:;s i ho;,rever. Ee \Yas not asked to ~Jlead to any claim f or the I'eturn of lobolo ca ttle 7 nor \ras he c alled even as a witness.

The applica tion foT' a d ivorce nas not resisted and after f ormal evic1enc e of adultery and cl.ese rtion h 2.d been g iven an orc~er of d ivorce uas g ranted and in accordance 'J i th the p rovisions of ::3ection 83( c) of the J.{atal Native Code it uas ordered that e i~ht head of lobolo c a:ttle must be returned by I~pplic8J1t to the Pl a intiff.

There is no evidence on the record of any attempt havin~ been n1c'.c1e to r e concile the parties to the d ivorce action7 as required by Section 78 (3) of the Code.

Applic a tion is novJ made for the q ua shins o:2 the ~.rhole of the proceedin.:;s in the Native Comruissioner ' s Court on tl1e fo llm .r ill.;-~ 2~rounds 7 viz ~ -

(a) Tha.t it 'ras irTe.:;ulc::.r to 1"1ake an orc1e::t• asains t Applicant in an ac tion wherein he iN as neither a party no r ~ r:~.s he c i t ec1 as as ':.istin2,· his dau,:;hter?

(b) .•. • .•••

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(b) Th2.t as the provi sions of section 78 (3) of the Native Code have not been com·,Jlied ~v:ri th the order ma de by the Native CoEnnission-~r is irregular 7

(c) That on the evi dence the Native Commissioner was not entitled t o g rant a decree of divorce.

The irrec ularities and Oi~1 iss ions referred to ·vmuld:~ undoubtedly 7 afford very .strone g rounds in an appeal by either of the parties to the action in the Native Comrnissioner 1 s Court o 'lhen 7 honever 7 it nas 1_:; o in.ted out to r:.Tr" Hoskin3s 1 v1ho repre s ented App lic a.nt 3 tha.t it had be en held in the cases of 3itebe v s · Sitebe? 1930 lT o.\. ,C o (N o f!c To ) 1 and lV.D.zontviana VSo L':ntab&1 i;~ 1S32 1>1. .:\oC , (C o & 0 ) 1 1 that a Native Appeal Court can only exerci s e its p mrer s of revie1.r uhen a case has been brouc,ht before it b;~r •.ray of appeal 7 he relJlied that Applic ant could not h ave appe a. led against the jud[.:.Jnent as he \•fa s not c'l p o..rty to tl:.e c as e in vrhich it "~Jas given o If this is so 7 Applic 3.l1t lla.d ot h er remec: ies vri thout coming to this Court a.u he coul c-:. h c.ve a~._)plie c1 f or a rescission of the judg­ment in t erms of Section 30(5) of the Rules of the Courts of Na tive Conrrnis sioners in civil proceedings published in Gov 2rrlinent Notice No o 2253 of 1 9 28 or he coul6. have instituted pro ceed ings to h ave tJ.1e •vrrit of ex ecution set asio.e on the groun·~ t l1a t he nas not a party t o the a ction o ::;::f s uch ~ctio~ •.1ere unsucce s s f ul h e could then have brousht the r:1c.tter b efol~e this Cou1 ... t b:y appea l in t h e ordinary VTayo

'l11is Court is a creature of st0.tute aJ1d therefore boun<i by the t erms of tl1e stct..tute creating it = Al t h ouc.;h Section 15 of the Native .2 ... d111inistrc:~tion .::.et ::;rants this Court full pmvers to revie1r an=_,- jud[)nent or proceeding s of a Native Cort!E1issioner 1 s Court, Section 13(5) provides that the Governor­General may make rule ,s :;."e gu1ating: the proc edure to be adoptedo It therefore f ollov.rs that this Court c annot allo' r a moc1e crf procedure nhich has not been so l;re ,scrib ed a s i s tl..e c c..se '.r i th the present application c

The application is dismissed : ri th costs o

DURBAN· 24th Octob er 7 1S3S. Befor e B . o Hartin 7 Pres ident 7 C o1 /. Cr-::·.YJford 1 J oT. Boas t 'i l.fer11bers Native Appeal Court (Natal end Tr2n s v aal Province s ).

Il'h1eri ta.L1ce - W(ikuns enail union- Section 72 ? Natal Code 9 1932 o

An appeal fro E-;. the Cou:r·t of Ea ti ve CoE111lis sionei' 7

A SON i30PJ:i TC A HOUG~ .\3 ~q .::; ={~ ;:JULT OF AJT 11 u.Ku1·,·GSNJ-~ 11 Ul': I ON J ,:_) ~rTITL::;:;jJ TO TI-IS PRCP'"~:-tTY li.I GHT:) I N JIIS o~ JH , .:) I .=>T · :G~-~~ ") c (lJ" .B o :. T£13 ~:F'~i':8CT OF SECTION 72 OF NATA.L CO:JE 1S3 2 7 :.JAS TO CC1l7FI :ti.'I 'rif~ DECI;JIOF I?T l'TOZ D \iKUKU \f'J • :·~EZI 1Sl4 IT oE .C. 149 .IHICE 0\f~}:-l·-RUL:SD Tiili CASE 0~ TEKill<A V.-J . CIY!~l,r.\ 1 S 02 ?T oi: o C " 1 8 ) .

Tl1e o o . o. ,

/I

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The lLesponcJ.ent in thi ~) c ase is the natural son and g eneral heir of the l ate L'Iv a kwendhlu F.c, cobo by his first a n d chief '·rife J:Tombaba.

The Appellant is the 11ukun~ena 11 son of 1· . .rval<J.r•rendl1lu by his se conc1 ·Iife L<llldil:e~'2.na '.rho 7 after hel"" !1u.sband' s dea.th, entered into 0.11 u:-:un~ena union ·vJ j_th t he latter 1 s brother Fayed' n..1. 7 and ·,1ho 1 as a result of that union, boi'e the J\P.1.Jellant · j1G thl .. ee ::.; i r ls Nontombana (~rho died) 1 I~ant1.~vanya­;. 1.2. and Ftombl.t:~clno., The ac,e.s of the survivin~~ r: ·irls are st:Yt.ecl to be t' ·snty ye<J.rs a11c1 seventeen ~re2.rs 'r~s~Jectivelya

A.t t he t ime of ~ 1vakvrendhlu's death the Yr oma..rl Il!la.i.1dikcyan a h 2.d borne t i·· o cl1iJ.dren only b~r himJ viz; 1Jomoya a nd Katazile " These t; lrls ' :ere taken over by Respond ent subsec1uent ot his fatl1er ' s cJ.eat:1 in hi s capacity of .:~·ene ral beiJ. ... , t~lei"'e being no ~1eir to the house to 1··rhich they belonged, and t~1ey do not enter i nto the c,3.S e no\! Ul1C'Ler cli s c l1 .• s sion o

The rna.tter a t iE,sue be t ' 1een tJ.1e pc:·.rtie s is the propert y :ci:zh t s vrhich ac cruecJ. to the house- of ~ .~-J1c1i1~eyana suly_,ecluent to her ;'ukun~~ ena.." unJ.o n '•I i th Fe.yecJ.,·ra) ~-11:~ ··,'!hich j_nClU(i.e the t· ro -_irlS 1 ~a.ll.t1 ' TEll1YO.i.1.3. a.no. j_·7tOll1baza.na o

·rhe j-z.tive Coi·_m1i cs ioner 7 l'Td~,red~.re 1 f ou~1c1 a~ains t the Appellant, •.· i1ic.l1 in e ffe ct l:iec:u1s th'3.t ~1esponCLent 1 011d not he? is en titJ.ec!. to such lJI'OpGrty ri,:;hts.

Appell:J.nt a~Jpeals a[:_ a.inst t hat cl. ec is ion and relies on the f'ol1o' rin;-~· 0rounc1E ; ··

(l)

(2)

(3)

(4)

(5)

Th 3.t he )roveC' t~1:..··~ ~1e -,.rld hj_.s t Ho s ist2~·s ? the propert~~ r i:~;hts J.n '.Jho111 -:..rere cla irr1ed by i.1espondent, Hel"'e the issue of a co ~_;n a.te union (ukun,.._:,e na. ) dul~r ent ered into ac c:o rc--:.in; to cu .s tOL1,

TI1e leal:'·ned. Native Cmnrni s sioner uas '·rronc in holc!.in~ that .:~pp elle.nt s ouc.;ht to d i .s:; ossess 211 existin~ heir of ri.:_::;hts V·rll ich accrue G. to h in by inheritance ; the property ri.:;:hts in c ispute not havin r:, e:;~is ted a t the time that thE: c OJ;nate union nas entered into o

The learned Native Cor1m1issioner onitted to ~ ive effect to the ·orovisions of r~ ection 72 of the Na.tal Co cJ.e of hative "Lav.r c

The le2.rned lJ:J.tive Conuni s sioner erred in relyin2· upon the case of Tekeka v s. Ciyana (lSC 2 IT . Ho Co 13) in tho. t a t. -~t,Jl~~~ .!J-!i}§_ .}}1_a~~. ~"t1~-~"S _ogp_CJ.:~_e ___ qP._i .. o_Y1_ Y!.?:.S .. entered ·into nothin:_::, 'Tas done to the pre judice of the 'il-i-en· ··ex~:Ls tin~~ l1eir nor has it been sought to deprive the then<-~ existing heir of any rights that existed at the time the sai o. cogn a te union ' '·TO.S entered into ,

The le ::.u·ned Native CoE1l.n i ss ioner erred in failin~~ to a-ol)l-v the -o rinci-oles of lavr laicJ. down in the case of_._ N~zinkuku VSo_,_l~fez i (1914 :r.E.Co l 4S ) in th2.t the property l"' i ghts in dispute onl)r accruect after the Sc.J.id coe n o.te union h ad been COilGL1Ii1ft1ated c

.. 38 -

I t i s clear from the record that the lU1kunz;ena union \.'as re.::;ularl y entered into in a ccordance 1 ri th custom, tha t a t the time of such union t he .~.~ec~j_J ondent Has his f a ther 1 s sole and only son and J.1::.s senerG~l :i1eirJ tha t he Has only five er six years of a~.e and consec1uently too ~roun~;· to be a par-ty to the m1ion or co1:1pe t ent to abc..ndon his ri.;hts of inheritance, tha t t he A)pell=::tnt and his t'JO s i sters LTantwanyana and Htombazail.a a.:ee the result of that union and tha t consequently the propert~r ri .~;hts r epres ented by them did not exist at the time of the union.

The :point s to be dec ided by this Court, therefore, are those raised in para;~ralJhs 2 9 3 7 4 ano. 5 of the grounds of appeal, the chief of vrh ich is 1.hethe r or not the Appellant i s entitled to property rights or benefits tho.t accrued after the ukun~~·ena union >:ic-.. s entered into c

The Appellant 1 s attorney subr.r.its tha t his client is so entitled and s upp or ts his a.r~_,1.u: 1 ent by reference to the p rovisions of ::;ection 7 2 of the ITatal Code of Nc;._t i ve La\'TJ and to t he ruling of the £ie.t ive 1Ii.:)1 Court in the case of Nozinkuku vs. T,Ifezi (1914 l\T . H. C. 149).

It is obvious from the lTative Cor.1miss ioner 1 s reasons for jucl.gl·!lent tl:.a.t he r·el ied on that part of the judgr::1ent in the case of Tekeka vs . Ciyai.13. 1,vhich l a. i d dovvn 9 amon.::, st other essentials 9 tha.t the cu stom of ukun~en2. can only be re s orted to when there is no heir--at - lm.; 9 or uhere t he heir· a t-law is old enough v oluntarily to re linqui s:J.1 h is right s to succeed.

The :rrative Cmmni ss ioner has overlook.ecl the f act tha t at a later dat e the correctness of that dictum vras questioned anc1 tha t it vras overrul ed in tlle case ~'ozinlru.ku vs o L:fez i (1914 lT.~-I.C . 14S). He has also fB.ij_ e c1 to conside r the effect of Section 7 2 of the He·. r :i'Tative Cede of lTative Lav~r ·v·vhich undoubtedly v1as inten0.c6 to con:CirE1 the dec ision in :i'Toz inkuku 1 .s ca.se and alla~r all cl.cubts that ~1Cl.C~ been raised by t he c as e of Teke~~a vs , Ci~ra11a.

This Court is in accord u ith the views exnressed in the case of Nozinkulcu vs c Life zi a11d asrees that the~ jud@,ment therein is in ac cordance "vith strict Zulu Law on the question of property ri[~ht.s which ~,_c crue to a house after an ukungena union ~1as been entered into c I t "Joulo. be inequitable to hold that a son born t o such J.1ons e ? as a re sult of such a w1ion? is i10t entitled to the property ri;_:_(h ts in his own sisters 9 or to hold that his ri;sht to suc ce ed to the h eirs hip in t~12.t house i s inferior to tha t of the general heir of ano ther h ouse.

The aiJDeal i s upheld yd.-~~1" costs end the jud[)11ent of ( the Native Comnis s ioner i·s a ltere ... ~ to one in favour of Plaintiff (Appellant) ·\rl1o i s tlecla red to be t he J.1e i:r· to his mothe r 1 s house 3110. enti tlec1 to the :9ropert~.r rishts Hhich accrued aft.~r ):l:.~r uk~?Z~H.S. un,:Lo::.1 ''f~ tll . F~~;~2~o." Pl<:tintiff to

1 have costs l n t .L1e Court oelovr ~ ·

3SHO:/E ••• • ·~ t

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ESHO'vE • 17th Octobe r 7 1935 o Before B o' i o :r.rartin? President 7 C o r.J o CT·au forcl? J .T . Boast;~ Henlbe:t·s Native Appeal Court~ (Natal and Transvaal Provinces).

Illeg itimate child - Property Rights ~· Incest o

An appeal from the Court of Native Cornraissioner 7 Mtunzinio

AN HEIR IS FOT Er:·l,I TI;~D TO PROPERTY :diGHTS IN A \JOT :.AlT BOIDT 0}"7' A..lT IlTCE :~TUUu ~...; u;\Tl JN TO YJHICH HIS DEC3:\:3JD FAT}IgR .;AS A Pt\~i!TY c

Appellant is the husband 9 in a cus tomaJ.'"'Y union 7 of a Native VIT OL1a.n named Paulina who 1 before her n1arriage 1 vras seduced by her cousin =~atewE; the father of R.esponden.t 1 and subsequently gave bil'"'th to the r2 .. tive female 1'Tohlan0o nho is the subject of ti1e dispute nm1 tefore this Court o

:MatevJu Hn.s sentenced -~o undergo a term of imprisonrnent as a punishment for the offence and served his sentence o

Having comL1itted ~.Ih2.-~, in thG eyes of the Zulus, is a heinous offenc '3 against :noral.s Paulina vras ordere d to seek out 7 iinmed:i. a tely? a L12.-.l1 Trhv \'!O'.l:Lri take hGr to ,,r i fe 7 in order the.t ~1e1~ d.i~· 2:rc:.c s E1iEh t ~Je c o-_: erG -~- up <

She ~Ient to !~ppeJ_lo.nt ~;.fho married. hel--~ paying ten head of J.obolo c3.ttle fol' ~1e:."' i vue .')f nhich vras returned to hir!1 as en 11 I.1vii1ba " (or closin~~ np) beastc The re12 ord c1oes not ~is~lose ~."J:1etl~e r 0r n.o-t t~1e usuaJ. t::r;:-gqutu 11 be~_.st 1:1as p~id and l t lS presul'l.1eu t l'.at .:.lo :;~.-::~~ pay111ent ~.Jas maC:te oe c c;~us e OI the fact that, tl1e 'JfJ.:J:an i .. .r a.s n.o 1ollf, er a ~J irgin o

In due course a ~~~TI:2..::i.e ~hild? Hol1la.n~so ~ -:.rra.;...) born o

The parties to this ease aJ. ' 2 a:\~ J8.l"'ian.ce re[:.3rdin; the time when and the place where tJ:-_i3 child ~rc..s born o The !-l.ypellant and ~1is vri tnesses dec]_are t hG..t thG birth took p lac e at his kraal after his h1arr i age ~c P3.~l~in2_J 'irl-.l ile the Res:~;ond.ent claims that the birth occurJ ... 2d. p~i or to the :Ila.I'l'"'i age and at the kraal of Pat:1ina 1 s fathel"' Gc.TJ::"tall D.o The Natii.Te Commissioner found as a f act that Hohlax.:.~.:~<; ·, rs.s !JO:."'n 3.:ftsr mal"Tia:e 7 in Appellant's kraal? 2nd tl1i s CouTt :i. s not disposecl to differ froL1 that finding o In any ev2nt; t~1e po int is not materia.l to the issue in this c as e<

The girl Nohlru1.~o seems to have lived ~Jractically all her life ~:; ith her :mot:1el'"' j P t11e kraal of her fos t e r father , the A.ppellant , She h3 . .S no~. r re a.cl1ed e. r11al"'r :i_ageable ag e and the prouertv ri ::hts i.n her a :."'e c1-~'.i.L1Sd by Re::Dondent 'dho 1 besides bei~1.5 t:1e s~n of the seclJ.ce~"' of !12r r!1other (Pa ulina) 1 has succeeded to the posi tio;1 o:..:· l.i8ii" to the house to i'Thich her mother (Paulina) belonr~9d be f o.::-· e heT 111arriage o

Thi s c~_se ori :-'" in<':::.tec::'. in t:1e Coui·t of the Zulu Chief :i·rikiza C.urin~~; Jo..:.1u3.ry 7 lS35 1 •r:1e1.1 the ~:tesponctent 7 in his c1ua_l capacity of heir to his l a t e: f:. t,j_ler T.=at2·:ru (who he..d previously become the heir to ~che hous2 c,o ~ r:.1ich hi s cousin Paulina belonged before her ;·ilar r i c..cc) c LaiLlecl the custody o.f the latter 1 E C~aug!lter Nohl an2,o. 'l'l1e Cllisf =, a.ve juet,snent in favour of rte S_?Ondent vrho ~ T3.S m':ar ded ·0L~...- rEstoc~y of t l1e H01'.1bl1 in dispute o

The o o • o o o

- 40 -

'rhe matter \1o.G taken in appeal before the Assistant Native CoEu"llissioner 7 I :tunzini? \Jho dismissed the appeal with costs? thereby confirmin~~ the Chief 1 s aviard.

An appeal a.:;ainst the Native Cormnissioner 1 s decision is l10W before the Court a.nci. it is submitted that the award of the property ri[shts in the ~:irl Fohlang o to Respondent, the son of I.Iatewu vvho v,ras :.;uil ty of t he cPime of incest v·r i th j~.ppellant 1 s 1.. rife 7 is contra bonos mores and not in accordance ''v ith the princi1) l es of natural j ustice and equity? rnore particularly as Appella .. nt has ll1aintained. and has stood in loco parentis to the ~ irl llohlangoo

The Court is in co:dplete agreement v.rith this view . As alrec~dy stated in this jud:_)11ent? sexual intercourse betu een p ersons . rho ['":.,e relateJ to eo.ch other even in the remotest cl e~;re e) a.nd. particularly those of the same 11 isibongo 11 or surname? is strictl~r prol1ib i ted 2J110n2:st the Zulus o In olden c.~a~·- s those who trc . .ns-= ressed 8-[;ainst this l av.r ':'! ould. a.JJ11ost certainl~r be :Jut to O.eath or bani shed from the society· to vrhicl1 t~1.e:r belong·ed, It i s cel'tain that no self respecting Zulu father would besmirch himsel f by profiting from the result of :1 i s c~a.uchter 1 s s~J.aBeful ·11c"l re l)rehens ible behaviour.

It has been urDed that because the Respondent is clai :t"r1in,:, a s heir to the house of Garndana (Paulina 1 s father) a nd not as the son of her seclucer? the strictly moral ban shoulc~ not prevail 2..:-_:ainst him.. The Coui't cannot uphold. the v iev1 and is of op lnion thc-.t the taint alreac-;.y referred to must attac:i1 to :1.esp oj_1dent.

J:t""'or t he r eason.s s t~,_t8d this Court is not able to SU)port t11e j uc~.,~LL~l1 t of t;1e lmTer Courts. To do so Houlc1 be t o ) Ut a prerJilun on an act u:1ich l S 7 in the eyes of the Zulus? a h einous offence a..=.,ainst n10rals .

The appeal i s u:?he1 c~. ': rith costs on the hiG;her sc a le o T~1e jud[:,E1ent of the Fati ve Commiss ioner is a ltered to one in favour of DefendcDt i.ri th costs o

:OU?.B.AN, 22nd. Cc tober 7 1935, Before B . ~J. I>=artin? President, C;:. Cra.wford :~ J ~T. Boo.s t ? Ee:1:.bers Native Appea.l Court (Na.tal an d Transvaa l Pr ovinces).

Customary Union - Divor ce ·· :~eturn of lobola - Sections 80 a;."J.d 83 Native Co de 1932.

An apr)ea l .frou tJ.1e Court of l\fative c orm·!1is sioner ? Umz into.

The •.... o

- 41 -

The Appell a.nt is the r uardian of Anzselina Mabasa who \·~as. the :JefenC.~.nt in a CP.Se heard by 'the native Commissioner? "lJDzlnto 7 in whl ch her husbo.n(~. tTaJTles Nabe.sa applied for and obtained an ord.er oi' divo :o. c e in a customa.ry union.

In add.i tion to ~p"'anting the order of divorce the Hati ve Corilm i ss i oner 7 as rec1uire cl by Section 83(c) o:f the Fatal Code of Na tive L ah' 7 orde~ced that four of t..l)e do11ry cattle pa i C. in respect of the divorced vr oman nlUst be returned to Plaint i ff 7 or t l1eir V8.lue £5 20.ch o

It is :.."'.gains t the latter order that appeal has been tlte follo; .rin[. [~rounds be in-3 relied UlJon 7 viz~-

(l ) ~-~~-~ 8.t t~w juc1~ t-11ent · ra.!J ·Jrong and bad in lau in that;-

(a) App ellant '·as not a party to the said action"

(b) A) pellant \:as not [c, i ven a.n opportw1i ty either to ple ?,d to 7 or to lea d evid.ence on the question ol the retu.rn of dm.rr~r cattle.

(c) :L'-To claim for t~1e I'eturn of tl1e cattle ~;Jas before the Court .

(2) In an~/ event (but onl:r in the event of tl1e Court

findiD~ a[;ainst hi111 in re~a.rcJ. to Clai ra 1 hereof) Appellant a)peal s a3'ains t t~1e se.icl. orc~er on the ~~rounds tha t the a1::ard. v.:;._s 7 in vieH of e.ll the c:i.rct1n st2J1c e s of the case 7 excessive.

The position in tl1is c :~.s e i s that the Aj_Jpellant vras n.ot eve1~. a . .ss ocic..tec!. 1;ith his c.a.ughte r in the capacity of (~LJ.ardian 'Nhen the orig ina l su"'u.::.ons for divorce , .ras issued on the 7th ::Jecember l as t 7 one I1t abata Goba h aving been named as her [;uardian f or t h e . ) Urp oses o:f the c s.s e o It vras only on t11e return d2.te ( 22/l/lS35) tha t the error uas noticed end on Plaintif f's applica tion the A.~Jpellant 1 s nxae \tas substituted for that of 1 =t c.:.ba ta Goba 7 and the c .:.-:.s e i:·.ras 2.dj ourend till the 25th FebnJ.2.ry 7 1935 7 to enable c Ol!:lJl i o.nc e v.ri th the provisions of Section 70 (3) of the Code ·. ~hi ch had not been observed.

Cn the cl.a.y follo~, rin:~· tl1e adj ournrnent ( 23/1/1935) an 81'l1811dec1 SUr:IJOllS 7 in uh:i.ch the .-\.~Jpellant 'rras Cited DOt only as t!1e a.ssistunt and Pl,otc~ ctor of DeZendCJ.1t but also as a. Co­:JeienC:..-:.n .. t in so far &s the cl2.ir:.1 f or the return of the "loboloi' is conc erne d 7 v as l1aJ1cled in to tJ.1•2 Clerk of the Court 7 anc17 accordins to the report o f tl·J.e la.st named official ? it 7 to -..:~ ether Yri th t,l1 2 n ctic e uhich ac coE1panied i t 7 "~Nas duly served on tl1e AJ!pell<ll.J.t.

Appell ant appearecl. bei'ore the Court on the 25th February , 1S35 7 ':r~.1 en the a.ppli c C~.tion for divorce was diS lJOsed o:t" anc1 th2 order DO' r c.,~)pealod 3-['a ins t wade o

In reply to que :J tionc:~ 1-:;ut by this Court at t h e last date of hearinr t he :·:o:tive cc~-[J:i_ li s s ioner has s tated that he cannot .sa•r c·eiJ.ni t el·v -..rheth .:.:r oT not the ar.1encl ed SUED 1ons

• l0 0'Y>i"ler-: ·o ==' ':'..,..~.. o·"' ·t"-1° r "'e c o•·•,c' ',.;.l 8"1 +11P ') lP ~ ··r:::·,.. t ~ Irarl "ue c:·avc· J..~ -• \...4.. .... .......,.l lJ j_ J. 1 ..,. :!. '-- , .l. ..:. .. l VJ.- J: -r: ... .# , ...... ~ ... ~ ..J G .. '\..\;:;;. . e; il U u \J

...-t:1at h i e notice · r .:~s not ;:;_ i r ec t oc1 to the subs tituted 81..1Lll'l1ons · a.n d. th2ct h e on}_y not.iced it enwn.~):::- t the papers at the close of

Defendant's .••.

- 42 -

Defendant ' s case . He says defi n ite l y tha t Appellant was not given the opport unity of pleadi ng to the su nmons, adding i rr have nevex· re[Sarded the ,suar dian in a divorce case as a Co-Defenda.nt but merely as ass i sting his vrard in the action so as to n·ive her locus standi in j udicio~ and h ave never g iven him the opportunity to plead. The i ssue bef ore the Court is whether or no t11e divorce is to be granted. ; and that is a matter bet\Jeen :1usba.nd and wife. il

It is obvious, therefore , that the A~)pellant was never p roperly before the Court in the capacity of Co­:JefendD..iTt as rec:u:itrec.l. by Section 80 of the Code 7 nor was he .c;iv en ru1 o1Jportu.nity to resist 011y order for the return of lobolo cattle.

Notvrithsto..nding these fe.cts t he Native Commissioner ordered t::.1at Appella.nt must return fou r he a d of lobolo cattle to Respondent in terms of :3ection 83 (c) of the Code.

He \vas clearly vvron2,· in doing this in view of the provisions of Section 80 of the Code vrh ich E1ust be read in conjunction \Vi th ::>ection 83. , I ~-\s no claim foi' the return of lobolo was made in the ori:l,' ina~ s~mlL-10ns? i:".rl~i~h \.r2.~ th~ only document be~or~ .· l the Court, l t lS the oplnlon o:t thls Court that the Natlve · CornmiGsioner erred in rnakin~; the order un de r discussion c

The appeal is upheld rri th cos ts a nd that part of t h e Native Cor.:nnissioner ' s judsT.1ent orderins the Appellant to return fou r he ad of cattle to 3espondent i s deleted .

... ,_._:

- 43 -

PHET0~1I.A. December S 7 l 935o Bei'ore Boi...J o Martin7 President7

Ho 6inc l air Fynn anc~ C o J. 3v·re eney 7 Eembers of Court ( Trru'lsvaal 2J1 G Na t a l Provinces) c

NATIVE .'\.l.)?:2AL CA,5Jr3 ·· Defarna.tion - Zulu custom - r1easure of d.cuJa.::;e s .

~~·atief. ;\.11 apl)e<ll from the Cou:L'"'t of Native Coli]·nissioner? Piet

Res·:Jondent? the dau c~hter of a chief 7 who nas engaJ·,·ed to be El£~l--I' ie d- to ~~ppellant 7 vrho had paid a. portion of the l~bolo? sued Appellant for £20 dt:~sna.g. es for defcmm tion in respect of an alle0 ed defamatory utterz'.nc e b;_· him in ·which her E1oral character a nd chc..s tit~r \'r ere att acked . Cohabitation bet'v:•een the parties l12.d a lrea(·:.y tc:.ken p l ac e 7 r2sultin::_· in the birth of t vd.ns.

The Native Con1E1issioner nho elected to try the case under the CoEli ~1on Lavr ;;ave juC::-3111ent for Pl,:tintiff for £7 and costs.

Defend2Dt apyealed.

::eld, That as the parties to the dispute are Zulus) defc:.;:no.tion is 2-0.1 a.c tionable i 1ron.c; 7 particularly in the case of unmarrie c~ leE1ales 7 ~t_cl_Q .:>ection 133 of Natal Native Code vvhich 7 thou~,h not applicable outside Natal~ is an exposition of Zulu custoi;"iar~,r law an d ll1i'":'ht well be used in the Transvaal 1..rhen the parties a re Zulus o ....

'l'hat in Dure Zulu law Hespondent w:;.s entitled to demand froE1 her slanderer- the payE1ent of the lar~est ox obtainable to wipe out the stain and stiQna and that a lthouzh the case was tried under the Common la~:r? it ca.n11ot be said that the amount of £7 aviarded is an excessive equivalent for a lar0e ox.

Appeal dismissed 'Ni th costs on hi~her scale.

FOH A?PELL.A.NT. I•-'Ir. L" Perkins of I.Iessrs. de Villiers and Pickard 7 Pretoria.

FO:::t :i.~SPOrTD31JT. r:r . r-I~J. Hart of r..Ie ssrs. Ste31"1ann 1 Oosthuizen and J2.ckson? Pretoria.

LnRTIN 1 P. ~ G.eliverin~; t~1e judc.;ment of the Court.~

This is an appeal a_:-;o.inst the jud")nent of the Native ConEJissioneT 7 1-'iet :::tetief 7 in a. case wherein Respondent vTa.s Plaintiff anc~ sued il.•Jpe llant for £20 as d.;;rnaces in re sj_Ject of an allec_, ed. C:Lefc:J.nc:-.tol ... Y utte:c·ance by the l a tt2r in vrhich the mora1 character an•.l cha,stity of ~leSj)Onc;_ent vrere attackedc

TI1e Native Co11.1111iGsione~:-- 1 s judJment was in favour of Res-oonC.ent w~1 o '..'-!a S a~:ra.r6.eC. c5.ax.1a[;es in the sum of £7 and costs of suit.

...m 0 0 o • , o

grounds, talcen o

- 44 -

An appeal was noted 8.2,"ainst tha~ judgment on five some of which were frivolous and should not have been

Counsel for Appe l lant? at the outset of his address ri_:)1tly intimated to the Court thD.t he could not support the grounds o:f appeal excep t in so far a s they relate to the arnow:.t of da.m.s.~:;es av.rarded to Respondent which he con tended v1ere excessive o

It is therefore onl~r necessary for this Court to decide the i s sue as re[;ards da.n1a,3es.

The evidt;nc e in thi s c c.se reveals that the parties were en~2··.~> ed to be married and a part of the lobolo has actually been paiclo Cohabita tion h ad tc..ken p lace resulting in the birth of twins o Then on a. certain occ as ion 7 on the date on which the o f:fendiT1~~ Hords were uttered, Appellant alle~es that he fouJ1d Re sp ondent in 1Nhat he r egarded as 11 suspicious circumstancesn nith another ua.n . T~1e only evidenc e of s uch suspicious circumstances is that of the Appellant uhich is rec orded in the following terms, viz;-

11 Sk het Eiser gekry by VIl'"' o lH1i te 1 s brickyard o o o. o , .•• o o 11Iv:adonsela v.ras saam met haar U.aar in suspisiese omstandighede o "Ek het vvoorde met haar g ehad.. ;jy het 1 n pink rok aang ehad en 1t 1 n mc . .n se onderbaa.dj i e. 11

nesyonclent denied be in~~ seen at the br ickyard in the company of another rnan 2-n d the Native Commissioner has found that the Appel.l&J.t 1 s evidence on that point cannot be acceptedo This Coul''t sees no reas on to diff2r from the Native Comr.aissioner in that re,sard.

It is c lear tha t Appellant •·.rent to the residence of Mr o '.lat erfiec1 1 where Be.s)ondent is employed? and. there publicly uttered the 1J orcl..s se t out in the suEllnons o buch words are unquestionably defamatory per se both at Common Law B..tJ.d in Zulu Lav-r and having been uttered maliciously they aT·e a ctionable o

It i s convenient to i ndic a te here tha t defarnation of character is an actionable wrong in Zulu Larv 7 p articularly in the case of unmarried females o ::secti on 133 of the Natal Code of Native L 2JN r eads a s follovrs 7 viz"-

11Any unmarried female vvhose chastity has been publicly "denied } scoffed at 7 or i mpeached by any person 7 is entitled 11 to 0-arna,:::;es for the slander o"

The Natal Code is not 7 of cours e~ applicable outs ide Natal but it is an exposition of Zulu Cus tomary LD.w and it might 'Nell be used as a [~u ide by r-Tc.t ive Corruni ssi oners in the Transvaal when adj udicating in matters in v·rhich the parties are Zulus 7 a s is the c2.s e in the ma.tter n ovr uncl.er discuss i on,

in the circtLi1s tance s related above the Native Cor,u:1issioner ri~htly avJa.rded daEw.[;es to Hespondento The l atter is ti1e dau~;hter of a chief and 7 therefore 7 a person of standing amongst other Natives o In pure Zulu LaYv she would have been entitled to demand from her slanderer t he payment of the l ar[;est

OX o o o o n o

- 45 -

ox obta i nable a s comp ensation f o r the insult suffered by h er , ancL f or the pur p os e of iNi.!:) inz out the stain and sti31na. eng endered thereby . I t c D.nno t be sai C. tha.t the sum of £7 is an excessive equi val ent f or D. l a r g e o: ;: 2.11d th i s Court is not prepared to assess da.rnar~ es on a lowe r sca l e.

In conclu s ion t he Cour t d i rects the attention of Na t ive CoElL:J i s sioners t o th e rulin.=, s of this Court contained in t he case s Charle s .. :>olor11 on r ~ <:'.:.:-;·uboya v s . \l illiaJi1 I ·~utato N .A . C. (T. & N. ) 1929 and Jacob Ft sab elle vs . Jerer;dah Poolo N .A. C. (T o & lT, ) 1930 in whi ch i t 'ras l a i d down tha t where Native Lavr provi des 0.. Pemedy tha t l avr sh ould be applied, an.d further that Na t i ve Commi s s i~"~; should si -n ify a.s_ea.rl~ as possible in the proc eedin.;,s_ the.i,r de2 i s iop _regar ing the sys tem -of larT to be--alJPl l ed to the c &.se 7 \Vhich de c i s ion should be duly recorded in .1 thel"eco r d of t h e case. · - r

·The appeal i s diSE1is s ed 7 with costs on the higher scale . Th e judQEent o:c· t h e Native CoE1E1i s s i one r in f avour of 11espondent (Pla inti:ff) fo :c £7 an6 co sts is confir med .

\ tl· Pr c f t, ) j

(q ) ~ ( .

PHETO:rtl.fl. . December 10 ? 1 2·35. Bef or e B. 11 . T'Iartin? Presic1ent 7 H. Sincla i r ?ynn and C .J" S'>:'! e eney? l'Ie:cnber s of Court (Tra nsvaal and Nat a l ) .

N~~TIV3 ,_.\PP~AL c.;.s:ss - Zulu custom - ', ji d.orJ - Lon~ cohabita tion F i t b. mal e person - Pr e sumpt ion.

iu1 appea l f r om the Court of Native Comrnissioner , Piet Retief .

.~:~es~Jondent sued f i r s t Appe l lant and another f or the delive r y of f irst Apj_Jell ant 1 s dau_shter or the return of lobolo paid f or h er. Fi rs t ~~l.ppe llant contencJ.e d tl1a t he was incorrectly sued a.s the g i r l b e in,3; t h e i s s u e of his cohabitation with a wi dow f or ·whom h e d i d n ot p ay cl O'i.:i i"J 9 he vras not the g irl 1 s n a tural su a r d i an.

Held ~ Tha t t he omi ss i on to pay lobolo anc~ the absen c e of the usual mar r i a:::;e c ereElOnia1 he.ve lit t le 7 if any 1 s i gnifi ­c ance v·Jh ere a nido~ r or divorc ed i:·roman i s c oncerned . I n such ca se s t he pres mnption i s tho.t t he union of t he partie s is r eg ula r "

!:..))eal upheld on other 8;r ounds .

FOR APPELLA:UT I.ill" . r,I .J. Ec.r t of Me s srs. Stegmann 7 Oos t h u izen 2nd. J a ckson.

FOR J.~.3Poi-:-n'3F'T ~ _\C.voc a te P " Hu -:-:; o inst r ucted by IVIessrs. Roux and Jacobs z.

l!Lll.H'I'IN 1 P , 7 c~eli verin-: the judgment of the Court ~

Thi s .....

... 46 ..

Thi s case cornc~s in D.i~)i?eal from the Court of the Ne.tive Co:·iu!liss ione::--; Pi e t l=tetief.

The ori~inal su~~ons in the case was issued on the 2C t h JuneJ l~:J35? at the :i.ns·bE.nce of Respondent and was directed e.cai nst t:i.1e ..:l..ppellant o.lone o It vras prepared by Respondent 1 s attorney ~nd the cla i m s t a ted therein was for;-

(a )

"The d.elivorv of Faulina Si::Jelane the dauc;hter of i1De i:"en1:=l.:.'.nt (Appellant) J v/!.10l1l l1e '_s_~l_d; 1 to Plaint·iff (Hespond­"ent) c::u1 c.~ f or Hllom i'l'J.int i i'f Ci.espondent) has pe.id eleven head "of c o.t tle? a s lo bolo ? .:.'l1cl Hhom Defendant notvri thstanding "re}!eatec."l cJ.eElands? r·efused to delivers Should the said "Paul i.no. not be de li vel'·e c1 t h en Pl a intiff (Re sponc.1ent) claims "re tnr:J. of e l even h e-.".G. of c a ttle paic1 to Defendant G.uring i 1 l ~'·3 3? p lus t he incree.se ther eof. n

(b)

11?la..intiff f urther cla i ms a declaration of ri2,ht as "to the child born b> tl1e s2.id Paulina Simelane? and. custody "of the s a i d child ? f or iVho". he paid Defendant customary 11 do.111ag e s as the ch ild · ':".S born before the said Paulina was 11 lo bol2.d . 11

The c 2.se c 21ne before the Court of the Native Comraissim1er? Pi c~ t 1-1e tief 7 on tl1e Sth July? 1935J "~h·hen A~Jpellant 1 s o.ttorney file d a y lea c.l.enyin:=; t i1e "sale 11 of Paulina? ancJ. alle~in,,.-' failere on t~1e :cJa.rt of :rtesponc.1ent to complete the :oayr1ent of lobolo) s edt~ ction of ? aulina before marri~e for F1l. ic~.l offe nce one 11 Elvi~Jbo. il be D.st "~T2.S paidJ cancellation of the a~_~ree:~~1ent to marry e tc. etc . It v1a.s further urged that it uas incora:) ete11t ior the •:m .. 1i'-L. to mo.ke an order about the child because i 1?2.ul'J.n2. 11 u2~s not ·oe:fore the Court o

'Ihe c c:.se wa.s t2J.ereunon ·~-; ost·Joned until the 27 / 8 /1S35. Cm tha t d<J.te Re s p ondent I ~-; o.ttorne~r s ou.=;h t leave to joil1 Paulina Hi th her father as co-- cJ.e~ ... encLs~1t vrhich was allovred by the Court. The onl;y- u i tness exaJ11i11ed on this 0.ay v1as Chief ir;_;ubu Dhlrunini? a so-called expert on J'Jative Cn f...:tomary Law? vrhof.>e evidence ·uas objected to b~r l.ir o Attorney Ol:~nesdaJ1l as bein£:!,· inadmi s sible? the ac1:.1ission of '~.rhich forras one of t he .~1--.ounds of appeal. The c nse 11as then further post p oned until the 17th September 7 1935.

Cn t~ae 16th SeyteTaber, 1935? notice \Ias file0. by 3.espondent 1 s 2~ttorne:r of h i s inte11tion to apply for the ar.nend­:·~1ent of tl1e ori:.; inc:.l su1!t:1ons to inc lude in paragraph (a) the 'Iords "The said Paulina '.iG.s livin~· "~. I i th Pla intiff but llas de se]."'ted ~1ir.r1 7 c.nd is n m.: l ivin,s ,_ .. Ji th her father? the said r·a.hon.:=·;.-;ul.e SiEl8l8J1e") and the su0s t:L tution in paragraph (b) of the ·.rords "before Pl2.inti:c-.f h 2 ... c1 Daic1 all the lobolo for the said P.s.uline_ sir11~eia~iie-ir :r-o-r-··:iJi-8 -oi:.·rr·-:--:[j~itir-;:[ol:;ds-·''b"efo_r_e_ -th_e_ ··:s-afci· .P.a1:L"i-:lna 1 ;o~s- ·fo b-o'i2~ci, ·1i ·· -· · -

On the same clay Appellc::~nt 1 s atto~cney gave notice of intention to cs1end his c lient 1 s ~;l e2. bJr acl.d ing thereto the follm:in~~ i tords 1 'J i z ~ --

"DefencJ.c_;_nts ··Jle r:.(~ t:1 o.:t no lobolo for the first ;i~Jefe i1(2a.nt 1 s mother- \rc.._s pai0. a nd that the eldes·~ son is the

party .• ~ •..

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"pa rty to be s ued. She vras a 1:ridow and merely cohabited with "seconcl. (? f i r st) De f endant to raise seed for her house. 11

lfhen the he c~rin.s of the case was resumed on the 17th ~::>epternber 7 1935 7 the Court nl lowed the amendment of the sw-mnons in tern1s of the aboveme ntionecl applications o An amendment of the ori,__, inal plea by the addition of the followi~ vrords thereto wa s .:-.lso al lmved 7 viz.··

11Paulina stD.t e s Rhe i s the mother and natural guardian "of thE:~ child and to rob h er of the custody thereof is 11 0lJl)o s ed to the principles of Public Policy and Natural "Jus ticee Pla intiff is not a fit and proper person to have "custody of the child . 11

The i [? Sue s hc:.vin~ ) a t long last 7 been ma.de fairly clear 7 the hearin~~ of ths c ,_,_se t h en proceeded.

Before di s cuss in:__, the meri ts of the ca se the Court feels inTo el le c1 to cormnent on the uns~:~illfL,_l manner in which this malter vas brou,~ht before the Court of the Native Commissioner.

The orig ina l suEunons Yras not as complete and explicit a s it shoulcl h ave b e en o.nc1 it 1 ia.s l arcely due to its deficiencies that t h ere \'iD.S cons i derable "~.r as te of time before the trial commenc eO." A f urther 1 ras te of time 7 to say nothing of an increase in the cost of liti~~ati on 7 Y.ras broucht about by the filing of frivolous 7 u1mece s sary 7 a nd not too skill:fully drawn pleas and c ow1ter pleas o Cnc e a~ain this Court dravrs attention to the nec essity to simplify 7 as fc. r ,-,_s ) oss i ble 7 the procedure in the Courts o:f J.,Tc_ ti ve Coi,;rni s s ioners o It \\TO.S for this reason that the fr8J~lei'S of the Rules of Native Comraissioners 1 Courts omitted to make the elabora te provisions tha t a.J:"•e contained in the Hule s of I.:a.::_,i strates ' Courts in I"'e&;o.rd to pleadings 7 objections 7 exceptions I etc e The procedure to be follovJed is clearly laid dovJn in Rule 26 (a) of the Courts of Native Cornr.nissioners and the p rovisions of that rule shoulc1 be observed. Where there l1as been a departure frolil prescr ibe d ~)rocedure 7 vrhich has resulted in vrasted or increased costs, Na tive Cor.nmissioners should take co2;nisa.1!ce of that f Ecct when considerin2,' the question of costs o

As re~o.rds the merits of the case 7 it is as \:Je ll to stc.te 7 as a p relim:...nary to fu r ther discussion 7 tha t as there is no direct reference in the pro c eedin~;s regarding the na tionali ty of the pa.J. ... ties to tl:e ca se ti12 Court a ssume s from the :Lr names anc"l surn 3.i.nes and t he ~~ eo~rD.~Jhical p osition of their districts of residence that t hey a re Zulus a11cl the legal aspects of the c a se vv ill 7 consequentl y 7 be juCJeed in accordance vYith the customary l aHS of the people of that r a ceo

Before proceedin~ to 6iscuss other aspects it is ne cessar y to first de cide the status of first Appellant in the family to which secoild Appellant (Paulina ) and her brother Lota Sirnelone belon0 o It is contended tl1at inasmuch as first Appell2.11t c1ic1 not pay lobolo :for the mother of those children he has be en i ncoJ."rectl v sued for the return of lobolo cattle receivecl f or ~aulin~~ and that the claiEl shoul d have been brou.r;ht against .ner brother :Gotc. ,:Jin eloJ1e b

It i s adr11itted by f irs t AlJpellant the..t he did not pay lobolo for l1is vii f e. Ee e ~~Dlnins that she v1as the wic~.ow o:f one I.Ian<loale ?a . .=,uti 7 that he ''found :' hel'"' 7 t ool: her unto himself as

v1ife". o., o

' .

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\·rife '.rithout formality) lived '-Ti th her in the rel a tionshij_J of mc.n and r.rife 7 nnd that Cl..S a resul·L, of such cohabita tion the th:c·ee chilcJ.ren i~l.flheus ( ("ecea_E.:ied ) i ?aulina a .. n.0_ Lota .. were born .

The omi ss ion t o pay lobolo <J.nc!. the absence of t11e usual c ei'emonial of m0.rria..c: e \tr oul cl be significant factors in cases of co11ab itation 1·r i th .J. SiJ inster but thev have verv li ttle 7 if an,~·, si:;nificaJ1ce iiJ1en a widow or divorced" \.Joman is ~oncerned. In such c, \Ses it is not usual to strictl~r observe the formalities that attc-~Cl1 to an oruinary union \·r ith an umna.rried 6 ii'lo In c ases such as the one uncJ.er discussion t he presumption is alvr2 .. ys ! t~1at the ion of the ~Jartn rs is recular a11d that j;Jresumotion >~ has not bee:.1 I'ebutted in tl1is c ,.=_.s e. The 09ur must hold 1 there- ( f ore 7 t ha.t the unJ_on betVJeel'r fiJ·st J . .:_Jpel lant and the mother of Paulina L'.nd Lota was l ... egul a..r and tha~ as their n a tural father ~ he iG t.he proller p e:. ... son to be sued .J? The correctness of this 1

conclusion is s treng t :nened by the fact that the offsprinr; of the union b2D..I' the surnvBe of their natura l father, viz. 110 imelane i t ru1d not that of their E1other 1 s fir s t husband nhich 'I as 11f.'a:;ut i · .

The ne~:t point to be decided is vrhether or not there v.ra..s a co1~1pleted le:..:,al union bet~reen Respondent and Paulinao Tl1e Nc:.tive Co .. u'j1issionei ... found in the affirr11o .. t~~ and b c; .. sed his fin(~in:~ Oi1 t he pa:~rrJent of a p ortion of th~obolo 7 the

,'Z:' kil;JJ_n_,- oi c 2rt~:. in c o.ttle, the lTcovision .::-n&Jconsumption of beer, l!/' ancl~Cohc..b i t~~tion \Thich ~.:'e Sul tec)_ in the bir•th of a child etc . etc.

These h2.) penin, ;:;; 7 v-rhen une.c componied by the ceremonials anc:I foni1aliti 2s \.fl1ic~1 a r·e (or shoulC:. ) b e observed in an~r well or~·;anised cor:rnuni ty of Natives, cannot be 11eld by this Court to constitute a J.e ~2.l w.1ioiJ. o The mej_"'e slau~.:;hterin~ of aniit1als oJ1c1 fe :<..S tin:-. w.1l e s.s it t , ... _~ces .:.J l c:.ce on t!1e a.ctual Heddins day p roves no thin~. .:~uch slaughterin.._: c usually t ake p lace on several occasions -~!rior to the .::-.ctual celebrs.tion of a warri2 . .r::,e 7 e<;· on the occz:.s ion of the brio.e 1 3 fo rmal betrotha l visit to the kraal of her future ilusb.:>nd. 7 :·11c-:. Zl~,ain ·when she is escortecl back to ;le ·n .~.-'1+-, .::~ ,.., I S ,,~·--.-, ~. 1 +o "' 'T "1l'+ COJ"·1~Jl 0 -'-l'Ol"1 O_J..co --;"1~ 1~l"'l·~rJ'e a·,--.r~ ·1 r ·,-,·1·1en·:·s ~ .L ..L e .. -:~- ~ -'- J.>...Lc .. c;.-; u C" • c.. u ~·"' '-: ~ ...,L.Lr_..-::- a....s .~ c .l L;.~l..., v o

Tl1ere J.s a cor:n l e·c.e a_bsence o:::L evla ence o:.c tne observ 2.nce oi 2.ny r:1a.rria~e ceTemoni 2~ in tnis inst2.nc e ai.1G. this COUl ... t is not :Jreue:'..rec. to c ondone s ucJ.1 slacknes s . ·Je ho l e)_ tl13.t ther·e \!2.8 no leg8.1 L.U1ion bet re en Hes)oncJ_ ~nt c-:,nd Paulinac

The Res9ondent i s? therefore, not entitled to demand the return of l:;Gculina t o hi!ll• All he is entitled to recover is ~uch of his lobolo c e.tt l e 2.s e:::cist at the 1-1resent time plus any inc:c·2 ~.se ·t,ho..t rna.y have o..c c rued to thern du.r in[.;· the ) eriod they have been in the :::)o ssessio:n of f irs t Appellant. It is vrell e s t ablished. l o..vv that all lo bolo c attle are re~.Jarded. as ;1.-3i.sa 11

c ::::..ttle w1til the cer ~l-.L1ony of m2.rric.c;e has actually been heldo The tern i 18isa 11 mec-·n u o.. cu.stom "~Jhe.:cebv c 2.ttle or other livestock are G.ep o s itecl. by theil"' owner \J J..th some othei" person on the unc"'t.e:c-.:.d:.an(in:-. t~1ct c' uch pel"'s on she.J.l enjoy the use of them, but tha .. t the ounership sl1all rewain '- iith aJ1d i11c 1 ... 2L:.se o.c crue to ti1e d e) ositor o In other :rords 5 in the c ~··.Se of marr i a,ze ~ t~-:e 11 dol~1ini~.1 ; 1 i:-t lobolo c2.ttl e rer.lcJ.ins 1·i i th t:L1e br·L ·.e:~:ro om c1nc. does not )o.ss to :i.1i s f3.ther - in- l<J.W, It fol lows 7 tl1e1"'efore 7 th~:. t all ~Jrof it a.n.cJ. J.o ~~s in respect of suc:1 c0.ttle r11u st be enjoyed OT borne) :;.s t!1e c0.se r,1ay be 7 by their· mrner • In t~1i~j c :.se it llc .. s been conclusively proved t h a t eleven head of 1obolo CC:i.ttle 1rere del iverec} t o f irs t Appell ant. T!!ere i.s very 1 i ttle evi .;,_l e;:c e on t he rec or(-:_ re' 'c::.r c1 i n -~ t !1e ntE.Llb 2 1... of increD.se to ~uch co.ttl~. -·- Ti1e ;:i tne s ses l~cJ1t~ o:c (7 ,_ J:TI<:cu.1.tolo) a.nd ~·:~.o rJanB ..

speak .. .. .. .

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abo ut t,Jo calves bu·c there a re no details re3u.rdin.::; them ? and fir s t Ap~)el1u.nt .:.C.tili ts tha t one of the lobolo cattle received b)~ hiE1 had a c o.l f. :tie says 7 l1o-, .. ; ev .-~ r, that such ca.lf represents the e ll~ 1Jenth lo ,;olo be c..~ ~\ t. The ex istence of the other calf 11.:1-.s not be en disput2d by ~\ ~)p'jllG.nts e.nc'. the Court must hold t hu.t there i s Droof tl1:1t a t le ~.s t one increas e h a.s accrued to the lobolo c · · ttle brin,··:in~ the totc..l nmnber returnable to twelve ~1e .2.d•

It is c1e .?r that the cu Ltomarv 11 L1v imba 11 beast ·ao.s Dai;~ ;· bv J:i2S~)onc1el1t in :..,2 SDect of }'li s seduction of the sec end ;~~)pe11:uTl:. ~ Rc Silon(.eE\-:, co~1tenc1ec1 t ha.t the payT11ent of such be.:.st e11ti tles h i m to the custody of the child resul tiJlE~ from suc:'t1 illicit intercour:·-:e even thou~h 1narriage with her mother h.~-.s no·c taken place Q rl':l.1J.t contention carmot be supported. It is not i~1 acco :t·d~:-.nce ;·d t 11 Zulu L-J)J . The payment of a :trvimba bea.Gt 3.1Ti0l12,'St t he Zu1u:::> J.L.s t he effect of restoring the virgin­i t~r of Et seduced ~~ irl in the eyes of the ,.,o rld 7 and compensa tes h er father f or the lo s s ol t h2 lobolo beast which he is debarred fror11 cl :=t. ilnin ,:: from c:.ny future .:;uitor by r eason of the fact that she 1KlS o.l.i.'80.dy borne .;_ c~1il (~ . Tl1is be2.st represents special damt.·~-L es 7 ~;.:-~ t l1e T1o.rri a; :e VD.lne o:L the ~~irl h a.s c~ecrea.sed by a be3.Gt ir-. re f>j_)ect of e:-~_ch cJJ. ilc~- sJ.1e has had (s ee l.Isonti vs. :Jin,::;· ij_1c1ctWO) 1S27 n .:: 0 c 0 p. l \.r:1:i.Ch 1i'.f ent in 2ppeal to the Appellate :Ji vision o:C the .:3upl'2iJe Court). The payr11ent of an 11 imvirnba 11

be .. Ls t L~.oe:.:; not enti·Gle the seducer to claim the custody of the resu l tL1, ~ ch i J.cl) v1h o iJ elon~·s to t l1e house to which the mothel" belon~_):.i o ':C:1e Eative Coluniss io11er \ras wrong? therefore? in D.'Harc.in.'"~ -c:·w cu _ tod.y of ?2.ulin'-~ .. i ;:; ch ild to Hesp ondent.

'T:i.1e ma tter of t he In .. · qutu be2.st V'lhich is due and payable ~:,o the 1Jo thel ... of 2~ 8'irl voJho has been seduced is not ~:.lent.ioned in this c ,~·-~; e aD.d as it h a.s not been claimed in the suur~1ons the Court i .s n ot in a p osition to talce it into cons idera-­tion in Llo..kin~ i t ci .?.t\I2.l"'d in res:)ect oi' the c a ttle to be returned to the =~e spondent . :; ·enti on is merely made of the l"Hc.tter? in pas sin2, 7 as an inCi.ication thi.l.t 2. claim may be made for such a beas t i f it hu..s not a1r a dy be ell. pe.icJ. .

It l1avi115 be en ci.e c icl.e d. tha t fir .s t Appellant must be re:~ar0.e d. CtS t :1e f athc; r anr~- ,::_u c.rdi an of the second and third A":Ji)ellant :i.t r:1us t b e J.1eld that t.:;.1e citation of them as co­defenda.nts • .. ~a.s unne ce ssar y and i rregular. In any ca se the third Deferlcl.3nt ~,., :,_ s never bef ore t he Court and the Native CoUE1issioner erreC. in making his judgT11ent opera tive a[;ainst him"

In conclusion t h i s Cou:r·t refers to the practice which seems to p r ;:-; vail in many of the Cou:et s of this Province of referrin::.; to the 2)·i v inr a nd t ::.kin~; of Hat.i ve ~;irls in marrie:\~ e as Hbuyin.:~: 11 and 11 c.; ell in~d c.s i:f tl-1ey were .~::, oods and cha ttels . The us e of .suc;l t e rF1L i.s ~ ro ssly irre[:;ula.r a.D.c~. should be di .S ·· continuec~,

The 2.p~)eaJ. is upheld \ dth co s ts in this Court on the hi.~her s c .:::le.

The j u ctsment of t he Lo',.rer Court is set aside an0. the follo',r in8 snbsti tute6 7 viz . -

"ror Plainti:i:f f or the return of eleven loboJ_o cattle it <?.nd on e b e2.s t the incre ~'.Se t he reof.

The .....

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" The ille~i tims.te chil d born to Paulina as the result it of her illicit intercourse vr i t h Pla intiff is declared to 11belon~ to the farnily of f irs t Defenda nt. 11

In vieH of the \..lilS'"lt i fJfactory manner in which the -~) roe eecl.:i.n: s in the r;ati ve Commissioner 1 s Court vrere conducted a11c;_ of the f2.ct t hat e2.ch pa.rty h a s been partially successful thei·e in? tllex·e \rill be ne orcJ.er as to costs in that Court.